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ADMINISTRATIVE & REGULATORY LAW NEWSVol. 26, No. 4 Summer 2001American Bar Association

Sect ion of Admin is t rat ive Law & Regulator y Pract ice

I n T h i s I s s u eChair’s Message 2 Nominations 3 Council Capsules 4 Kingpin Act Program 6 Sweeping Changes to Medicare Procedures 7

Charting the Course of Election Reform 8 International Administrative Law Program 9 Bush Order on Energy Regulations 10Bush v. Gore Section Members Square off 11 Supreme Court News 12 Annual Meeting 14 News from the States 16 Recent Articles 18

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Annual Meeting ChicagoAugust 3-7

Administrative and Regulatory Law News Volume 26, Number 42

doctrine — using it as a basis for commanding the agencyto write standards to narrow the scope of its own discre-tion — was curtly dismissed in a single paragraph.

Although I agreed with the outcome of AmericanTrucking, I have a modest suggestion as to a broader groundby which the Court might have reached it: the Courtshould overrule the nondelegation doctrine completely.

Let us posit, as we begin to contemplate this possibili-ty, that the validity of delegation itself is not the issue.Proponents of a vigorous nondelegation doctrineacknowledge as much — despite their fondness for quot-ing Locke’s aphorism that the legislature’s power is “tomake laws, and not to make legislators.” In a society ofover a quarter billion inhabitants, the idea that Congresscould make all the important decisions is sheer fantasy.No advanced industrialized country exists without poli-cymaking by a bureaucracy, nor could any possibly do so.

ADMINISTRATIVE & REGULATORY LAW NEWS

One Last Haul, via American Trucking

One of the principal missions of our Section is to leadthe way toward modernization of government in light ofnew realities. Several of this year’s major Section policyinitiatives reflect this theme. As has been chronicled atgreater length elsewhere in these pages, we are sponsoringin the House of Delegates a resolution, drafted by PeterStrauss, to promote best practices for the use of Internettechnology at regulatory agencies. Also headed for Houseaction this summer is a resolution, spearheaded by SidShapiro, to facilitate public participation in inter-countryefforts to harmonize domestic and foreign regulations.Still another notable initiative is our project to articulatestandards defining the role of ombudsmen in both thepublic and private sectors. Phil Harter and Sharan Levinehave played major roles in the Section’s painstaking nego-tiations over these standards, which we hope will culmi-nate in ABA adoption at the Annual Meeting.

Closely related to the need to adapt to new techno-logical and social realities is the need to prune away fea-tures of administrative law that have proved obsolescent.The latter objective brings me to the main subject of thismessage. My point of departure is a case that was billedfor months as the major administrative law event of thecurrent Supreme Court Term. In Whitman v. AmericanTrucking Ass’ns, (American Trucking), 121 S.Ct. 903(2001), the Supreme Court had an opportunity to dosome serious housecleaning of out-of-date doctrine —although it passed up the opportunity, apparentlybecause it was not ready to admit to the obsolescence.

Initially in American Trucking, the D.C. Circuit hadraised the possibility of major doctrinal change when itheld that the EPA’s regulations on ozone and fine particu-lates were invalid under the nondelegation doctrine. Thatopinion triggered considerable discussion, at our Section’sprograms and elsewhere, among observers who hoped —or feared — that the Supreme Court would follow suit.Had the Court done so, American Trucking could havebecome the first Supreme Court case since 1935 to strikedown a statute on nondelegation grounds. In the end, theCourt’s ruling was fairly conventional. The Court decidedthat the relevant section of the Clean Air Act contained an“intelligible principle,” and thus was not unconstitutional.The lower court’s creative approach to the nondelegation

continued on page 24

(ISSN 0567-9494)Published by the ABA Section of Administrative Law andRegulatory Practice, 740 15th Street, NW, Washington, DC20005-1002.Editor in Chief: William Funk, Lewis & Clark LawSchool, Portland, OR 97219, (503) 768-6606; FAX (503) 768-6671; e-mail: [email protected]. Associate Editor for Section NewsWilliam S. Morrow, Jr., e-mail:[email protected]. AssociateEditor for News from the States Michael Asimow, e-mail:[email protected]. Staff Director: Leanne Pfautz, ABA, 74015th Street, NW, Washington, DC 20005-1002, (202) 662-1665;FAX: (202) 662-1529; e-mail: [email protected] views expressed in the Administrative & Regulatory Law Newsare not necessarily those of the Section of Administrative Law andRegulatory Practice, the American Bar Association, or the Editors.

Chair’sMessage

Ron Levin

Correction:The Spring issue of the News reported that in theSection’s February 27 debate on “midnight regula-tions,” Sally Katzen and Jay Plager agreed that“incoming administrations should have some oppor-tunity to review midnight regulations, even if itmeans amending the Administrative Procedure Act.”Ms. Katzen agreed that an incoming administrationshould have the opportunity to review its predeces-sor’s regulations, but did not believe this requiredamending the APA.

Chair: C. Boyden Gray(Washington, DC) – privatepractice with the law firm ofWilmer, Cutler & Pickering.Boyden served as the SectionVice Chair and Chair-Electthe past two years and hasbeen a speaker on severalSection programs.

Chair-Elect: Neil R.Eisner (Washington, DC) –Assistant General Counsel forRegulation and Enforcementat the U.S. Department ofTransportation. Neil served asVice-Chair of the Sectionduring the past year and hasalso been the Vice Chair ofthe Rulemaking andTransportation Committees, Co-Chair of the Mary C.Lawton Government Service Award Committee, and afrequent speaker at Section programs.

Vice Chair: ThomasMorgan (Washington, DC)— Oppenheimer Professor ofLaw at George WashingtonUniversity. Tom has servedon the Section’s Council.Recently, he has been ourrepresentative to the Ethics2000 and other related ABAefforts respecting professional

responsibility. He is a former Dean at Emory LawSchool, past-President of the Association of AmericanLaw Schools, and a widely respected scholar on regula-tion and administrative law issues. He is an author orco-author of casebooks on regulation (with PaulVerkuil), antitrust, and professional responsibility.

Budget Officer: David Roderer (Washington, DC)— Office of Federal Housing Enterprise Oversight.David has been serving as the Section’s Assistant Budgetofficer, as well as co-chair of the Section’s committee onBanking and Financial Services. David worked forTreasury and practiced with Goodwin Procter (in theWashington, DC, office). He has been an active partici-pant in Section meetings and activities and an author ofworks on banking law and securitization.

Summer 2001 Administrative and Regulatory Law News3

Nominations for 2001-2002

Assistant Budget Officer: Dan Cohen (Washington,DC) — Office of General Counsel, Department ofCommerce. Dan has served as chair of the Section’sRulemaking Committee and has worked on severalaction items that have involved electronic information.

Secretary: Cynthia Drew (Washington, DC) –Environmental and Natural Resources Division,Department of Justice. Cynthia has been the Section’sSecretary and has been co-chair of the annual meetingand also served as chair of our membership committee.She has been active in our Environmental and NaturalResources committee as well.

Council:

John Duffy (Williamsburg, VA) – Professor of Law,William & Mary’s Marshall-Wythe School of Law. Johnhas been working on the APA Project as AssistantReporter. He also serves as Vice-Chair of theIntellectual Property Committee. John is a veteran ofthe Office of Legal Counsel and of Covington &Burling, and clerked for two former Council members.

Cynthia Farina (Ithaca, NY) – Professor of Law,Cornell Law School. Cynthia was the reporter on ourgovernment ethics project of a few years back and alsoserves as reporter on part of the judicial review portionof the APA Project. She is a co-author of the Gellhorn& Byse’s Administrative Law casebook.

Leonard Leo (Washington, DC) — Vice-President ofthe Lawyers Division of the Federalist Society. Leonardhas served as the Section’s assistant budget officer andthen budget officer. Leonard has also served as chair orco-chair for two of our annual meetings, has chaired theSection’s Committee on Government Organization andSeparation of Powers, and also chaired our workinggroup on congressional oversight of executive branchprosecutorial activity.

Sidney Shapiro (Lawrence, KS) – John RoundsProfessor and Associate Dean for Research at theUniversity of Kansas Law School. Sid has served previ-ously as the Section’s Secretary, is co-chair of our com-mittee on regulatory initiatives, and is vice-chair of ourcommittee on regulatory policy. Sid worked at both theFTC and HEW. He is co-author of books on adminis-trative law, on administrative procedure and practice, andon regulatory practice.


A Brief Digest of Council HighlightsFrom the 2001 Spring Meeting in Sanibel

Report of the ChairSection Chair Ron Levin thanked Sharan Levine forputting together the Spring Meeting. He alsothanked the program chairs and speakers. He saidthat the “buzz” after the international administrativelaw program was, what can the section do to build onthe project? He noted there will be another programat the Administrative Law Conference in Washington,DC, in November, and perhaps a law review sympo-sium. Levin announced that the Council’s ex-officiolegislative branch liaison, James Ziglar, has beenappointed to head the Immigration andNaturalization Service.

APA ProjectThe Council approved, subject to minor revision, adraft black-letter statement of law covering theFreedom of Information Act, the Government in theSunshine Act and the Federal Advisory CommitteeAct, as presented by Tom Susman, co-reporter onopenness. The Council deferred approval of a draftblack-letter statement of law on standing to seek judi-cial review of agency action. The reporters felt thestatement, introduced by Cynthia Farina, co-reporteron access to judicial review, needed a bit more work.Draft black-letter statements may be viewed athttp://www.abanet.org/adminlaw/apa. Comments onthe standing statement may be directed to ProfessorFarina at [email protected]. The reporters anticipatethat statements on scope of judicial review and govern-ment management will be ready this summer in timefor the annual meeting in Chicago. All black-letterstatements are expected to be completed by theAdministrative Conference meeting this comingNovember. Anyone interested in commenting on thework that has been done so far may email the sectionat [email protected].

PublicationsRandy May gave the report of the PublicationsCommittee. He said that sales of section books aregoing well and that the section had the third highestbook sales revenue of all sections for the month ofMarch. He said the section has a monograph in thepipeline on the Sunshine Act. The Council approved abudget item for a brochure advertising the FederalAdministrative Procedures Sourcebook, the ADR Deskbookand the Guide to Federal Agency Rulemaking.

New Section Leadership DirectoryThe Council approved a proposal introduced by JudyKaleta for an interactive section leadership directory.The new directory will be accessible through the sec-tion’s web page, and members will have access to an on-line form for listing and updating their information.The directory will continue to be published in hardcopy format, as well.

Amicus BriefsSection Chair Ron Levin reported on the efforts of theSection Officers Conference Committee on AmicusCuriae Briefs (SOC Amicus Committee) to amend theABA’s policy prohibiting individual sections from filingfriend-of-the-court briefs on their own. Currently,except for statements on rules of procedure, the ABA’sblanket authority rules permit a section to present state-ments on matters within its primary or special expertiseand jurisdiction to legislative and executive bodies only.The SOC Amicus Committee, at the behest of theSection Officers Conference, has drafted a recommenda-tion and report that proposes an expansion in the blan-ket authority rules to permit the filing of amicus briefswith state and federal courts on specialized issues that theABA would be unlikely to address as a whole but as towhich a brief from a section with expertise would be ofbenefit to the Court.

The ABA’s Standing Committee on Amicus CuriaeBriefs (Standing Amicus Committee) has thus faropposed the SOC Amicus Committee’s proposal onthe grounds that (1) courts will not necessarily distin-guish between the ABA as a whole and a particularsection; (2) a multiplicity of briefs might dilute theprestige of the ABA’s name; (3) current policy assuresthat briefs filed in the name of the ABA truly repre-sent the views of its membership; and (4) allowing sec-tion briefs would run the risk of a filing that reflects apolicy contrary to the views of a large segment ormajority of the ABA.

The SOC Amicus Committee has responded that,based on experience with blanket authority statements,it is their belief that the blanket authority rules willprove a sufficient safeguard against the concerns raised bythe Standing Amicus Committee.

Council members generally favored the proposal,assuming that appropriate safeguards would be incorpo-rated into it. Past Section Chair Tom Susman echoedthe Council’s concerns, noting that there must be stan-dards defining when a section may step in and that theremust be stringent conflict of interest provisions. Levinnoted that the SOC Amicus Committee has invited the

CouncilCapsules


Standing Amicus Committee to exercise quality control.Levin said he would keep the Council informed on theprogress of the proposal’s progress.

Harmonization RecommendationSidney Shapiro, co-chair of the Regulatory InitiativesCommittee, presented the committee’s proposed revi-sions to the report and recommendation on harmoniza-tion of U.S. regulatory standards with global regulatorystandards approved by the Council at the 2000Administrative Law Conference for adoption by theABA House of Delegates. (See Council Capsules,ADMINISTRATIVE & REGULATORY LAW NEWS, Winter2001). The revisions respond to concerns raised by theInternational Law and Practice Section, the Departmentof Commerce, and the Food & Drug Administration.The principal substantive revision to the recommenda-tion makes clear that it only applies to significant harmo-nization activities “that may require new regulations orthe amendment of existing regulations.” The Councilapproved the report and recommendation as revised.Shapiro anticipates the International Law and PracticeSection will agree to act as cosponsor at the annualmeeting in Chicago this coming August. The revisedrecommendation reads as follows.

RESOLVED, that the American Bar Associationrecommends, concerning significant agency efforts toharmonize domestic and foreign regulations throughinternational negotiations that may require new regula-tions or the amendment of existing regulations, that:

(1) the President seek to ensure effective public par-ticipation by encouraging federal agencies to:

(a) list at an appropriate time significant proposedand ongoing harmonization activities in their annualregulatory agendas or equally widely available medi-um; and

(b) prepare impact statements already required bystatute or executive order as near as is practical tothe time of the agency’s consideration of a decisionto engage in negotiation of significant harmoniza-tion, and(2) federal agencies take into consideration public

input concerning significant agency efforts to harmo-nize domestic and foreign regulations through interna-tional negotiations by:

(a) inviting the public periodically to commenton new and ongoing significant harmonizationactivities and to attend public meetings concerningsuch activities;

(b) referring significant harmonization issues to

advisory committees where appropriate and possi-ble; and

(c) establishing a public docket of documents andstudies available under the Freedom of InformationAct (FOIA) pertaining to each significant harmo-nization activity.

Judicial Nomination ProcessSection Delegate Ernie Gellhorn advised the Councilthat the ABA House of Delegates was likely to be pre-sented with a resolution at the annual meeting this com-ing August urging the President to reconsider his exclu-sion of the ABA’s Standing Committee on FederalJudiciary from pre-nomination participation in the judi-cial appointments process.

In seeking the Council’s advice on how to proceed ifsuch a resolution is introduced, Gellhorn proposed thefollowing guiding principles. Any resolution the Housepasses should be non-confrontational in tone and focuson the service that the Standing Committee can providethe President. The resolution should make the expresscommitment that the Standing Committee shall focussolely on the professional qualifications of the candidatesand avoid any political or ideological judgments. Theresolution should emphasize that the process shall beconfidential and that only the final vote of the StandingCommittee shall be made public.

The consensus of the Council was that, if the Housepasses a resolution, it should be restrained in tone.

Administrative Judiciary ResolutionEdwin L. Felter, Jr., chair of the National Conference ofAdministrative Law Judges, briefed the Council on a res-olution that the ABA’s Judicial Division intends to pro-pose for adoption by the House of Delegates concerningthe independence and impartiality of the “administrativejudiciary.”

The resolution proposes that federal and state “mem-bers of the administrative judiciary be held accountableto the highest ethical standards based on the ABA ModelCode of Judicial Conduct (1990), and that any discipline orremoval of a member of the administrative judiciary forviolation of any such standards or for any other reasonoccur only after the opportunity for a hearing under thefederal or a state administrative procedure act before anindependent tribunal, with full right of appeal.” Theaccompanying report notes that some provisions of theModel Code would not be applicable in some situations.

The consensus of the Council was that the section


The United States expanded its war on illegaldrugs in 1999 with enactment of the ForeignNarcotics Kingpin Designation Act (“Kingpin

Act “), Pub. L. No. 106-120, tit. VIII, 113 Stat. 1626(Dec. 3, 1999), (codified at 21 U.S.C. §§ 1901-1908),which provides for the use of economic sanctions thattarget foreign narcotics traffickers and their associates.The Act was patterned on a 1995 sanctions program tar-geting Colombian drug traffickers instituted by aClinton Administration executive order under authorityof the International Emergency Economic Powers Act(IEEPA) (50 U.S.C. 1701 et seq.).

The Kingpin Act precludes judicial review of desig-nations of foreign parties under the Act and provides forheavy criminal and civil penalties against U.S. personsthat deal with such designated parties. Section 810 ofthe Act, however, established a “Judicial ReviewCommission on Foreign Asset Control” to conduct (1)“a review of the current judicial, regulatory, and admin-istrative authorities relating to the blocking of assets offoreign persons by the United States Government,” and(2) “a detailed examination and evaluation of the reme-dies available to United States persons affected by theblocking of assets of foreign persons by the United StatesGovernment.”

The Commission finished its work last year and sub-mitted its report to Congress on January 23 of this year.The Section of Administrative Law and RegulatoryPractice cosponsored a program on the report shortlyafter. This article briefly reviews the statute, theCommission’s report and the panelists’ remarks and con-cludes that the Commission’s recommendations face anuncertain fate in Congress.

The StatuteThe Kingpin Act charges the president with reporting toCongress on an annual basis the names of “significantforeign narcotics traffickers (“foreign Kingpins”) . . .whose activities threaten the national security, foreignpolicy, and economy of the United States.” 21 U.S.C. §§ 1902, 1903. The Act freezes (“blocks”) foreignKingpin assets located in the United States and in the

hands of any “United States person.” 21 U.S.C. §1904(b)(1). The Act prohibits transactions or dealings inforeign Kingpin assets by anyone within the UnitedStates and by any United States person anywhere, as wellas “any transaction or dealing by a United States person,or within the United States, that evades or avoids, or hasthe effect of evading or avoiding, and any endeavor,attempt, or conspiracy to violate, any of the prohibi-tions” contained in the statute. 21 U.S.C. § 1904(c).

The Act applies these same blocking provisions andprohibitions to foreign persons found by the Secretary ofthe Treasury to be: (1) “materially assisting in, or provid-ing financial or technological support for or to, or pro-viding goods or services in support of, the internationalnarcotics trafficking activities of” a foreign Kingpin orforeign Kingpin accomplice; (2) “owned, controlled, ordirected by, or acting for or on behalf of,” a foreignKingpin or foreign Kingpin accomplice; or (3) “playinga significant role in international narcotics trafficking.”21 U.S.C. § 1904(b)(2)-(4). The Commission reportrefers to these persons as “Tier II designations,” theKingpins themselves being “Tier I designations.”

The Act generally authorizes the Secretary of theTreasury to issue orders and prescribe regulations for thepurpose of carrying out the statute — by means ofinstructions, licenses, or otherwise — with respect topersons and property subject to the jurisdiction of theUnited States. 21 U.S.C. § 1905(a). Specific powersinclude the authority to investigate, regulate or prohibittransactions in foreign exchange, currency, or securitiesand transfers of credit or payments involving a bankinginstitution to the extent such transfers or paymentsinvolve the interests of a foreign country or foreignnational. 21 U.S.C. § 1905(a)(1).

The Secretary also may “investigate, block during thependency of an investigation, regulate, direct and com-pel, nullify, void, prevent, or prohibit any acquisition,holding, withholding, use, transfer, withdrawal, trans-portation, placement into foreign or domestic com-merce of, or dealing in, or exercising any right, power,or privilege with respect to, or transactions involving,any property in which any foreign country or a nationalthereof has any interest.” 21 U.S.C. § 1905(a)(2).

The Secretary is not required to observe the requirements


Section Program Plumbs Shortcomingsof the Kingpin Act

By William S. Morrow, Jr.*

*Associate Editor for Section News; Chair, TransportationCommittee; General Counsel, Washington Metropolitan AreaTransit Commission. The author thanks the panelists for review-ing this article and suggesting improvements. continued on page 20

Medicare coverage policymaking and appeals processes.

BackgroundThe concept of coverage refers to the amount, duration,and scope of benefits that the Medicare program (or anyinsurance plan) will pay for. The Medicare statuteexpressly states: “no payment may be made under Part Aor Part B for any expenses incurred for items or services”that are “not reasonable and necessary for the diagnosis ortreatment of illness or injury or to improve the function-ing of a malformed body member.” 42 U.S.C.§1395y(a)(1)(A). Since Medicare’s commencement in1965, local insurance companies with which Medicarecontracts to handle Medicare claims make most coveragepolicy decisions and adjudicate disputes over coveragepolicy in the context of denied claims for benefits.

By the early 1980s, the Medicare program issuedMedicare coverage policies at the national level throughthe development of National Coverage Determinations(NCDs), in addition to the coverage policy made by localcarriers and fiscal intermediaries. At first HCFA madenational coverage policy internally with the advice ofphysicians working for HCFA. HCFA would consultwith the technology assessment authorities in the PublicHealth Service for needed medical advice on a new med-ical technology. Many Medicare constituencies objectedto the closed and secret nature of these procedures. TheAmerican Bar Association and the AdministrativeConference of the United States, among others, voicedsimilar criticisms and recommended procedural reforms toopen the Medicare policymaking process.

The Medicare statute has always allowed beneficiariesto challenge adverse Medicare coverage decisions andpolicy in the context of individual beneficiary appeals.Only the Medicare beneficiary has a right to appeal.Health care providers and suppliers of durable medicalequipment can only appeal if they accept assignment ofthe beneficiary’s claim. Providers, suppliers, and evendevice manufacturers can represent beneficiaries inappeals but with substantial limitations on payment forrepresentation. Understandably, Congress and HCFAhave designed the beneficiary appeals process to addressthe concerns of beneficiaries in an accessible and expedi-tious review process with only an occasional need for

On December 21, 2000, Congress enactedsweeping changes in the Medicare coveragepolicymaking and appeals processes after years

of controversy. These changes were in the Medicare,Medicaid, and SCHIP Benefits Improvement andProtection Act of 2000 (“BIPA”), enacted as part of Pub.L. No. 106-554, Consolidated Appropriations Act, 2001.

Since the inception of the Medicare program,Medicare coverage policymaking has been controversial,because it is in the context of making coverage policyand adjudicating disputes over coverage that the issuearises of whether and when elderly and severely disabledAmericans will have access to new and often costlymedical technologies and medical devices. The HealthCare Financing Administration (HCFA), which admin-isters the Medicare program, has consistently sought toretain tight control over coverage policy to maintaincontrol over costs.

Beneficiaries, health providers, and the manufacturersof new medical technologies and devices are vitally inter-ested in Medicare coverage policymaking and appealsprocesses. If Medicare does not pay for a new technolo-gy or device, as a practical matter, the technology ordevice will be unavailable to Medicare beneficiaries andthe physicians, hospitals, and other providers that servethem. The suppliers of durable medical equipment, whomake and distribute many new medical technologies anddevices, only handle covered technologies and devices.Further, failure to obtain coverage of new medical tech-nologies and medical devices has a devastating impact onthe ability of manufacturers and their investors to makemoney and recoup product development costs. In sum,the stakes involved in Medicare coverage decisionmakingare quite high and of interest to all the main constituen-cies of the Medicare program.

There has been substantial criticism of the Medicarecoverage policymaking and appeals processes over theyears. The medical technology and device manufacturersand durable medical equipment suppliers have been par-ticularly vocal and increasingly effective critics ofMedicare coverage policymaking. Indeed, manufacturersof medical technologies and devices have been the majoradvocates for the new legislation for reforming the


Congress Enacts Sweeping Changes in Medicare Procedures

by Eleanor D. Kinney*

* Samuel R. Rosen Professor of Law & Co-Director, The Center forLaw and Health Indiana University School of Law – Indianapolis. continued on page 22

Whether or not you agree with the outcome ofthe latest U.S. presidential election, it is diffi-cult to defend the process that carried

George W. Bush to the White House. Under-trainedelection workers were sorely tested by massive voterturnout and malfunctioning equipment. First-time vot-ers, and even some veteran voters, found themselves per-plexed by confusing ballot layouts. Eligible voters wereturned away from the polls, and ineligible voters wereallowed to register their choices. The candidates armedthemselves with hordes of lawyers and teams of mediaadvisers as they jockeyed for position in the courts andthe public eye. And all this in just one county in onestate — Florida. I am pretty sure this is not what ismeant by government in the sunshine.

The question is “What Lessons Does the FloridaVoting Process Have for the Future?” That also is thetitle of the election law program sponsored by theSection of Administrative Law and Regulatory Practiceat its 2001 Midyear Meeting in San Diego this pastFebruary. The program was co-sponsored by theSection of State and Local Government Law and theStanding Committee on Election Law.

The panel included one lawyer from the Bush team,George Terwilliger, one lawyer from the Gore team,Joseph Sandler, and former Florida elections director,David Cardwell. Trevor Potter, former chair of theFederal Elections Commission, served as moderator.

Terwilliger characterized the post-election contest inFlorida as a “fair fight” but one that never needed tohappen and something that can be avoided in the futureby focusing on devising voting systems that work, anendeavor that transcends political and ideological lines.This means establishing clear, objective standards forcounting votes — standards that:

• Are well articulated and uniform throughout the state;• Do not require interpretation as you go along;• Are tailored to the different types of voting equip-

ment in use;• Are consistent with the instructions voters are

given; and• Include procedures for resolving disputes in a pre-

cise and uniform manner.Terwilliger said reforming the system also requires

more clearly defining the jurisdiction of the courts. Heacknowledged that courts have a role to play in the elec-tions process but one that is principally limited to reme-dying voter fraud. They should not supervise electionsand should not be the ultimate arbiters of who won. Henoted that courts are not equipped to resolve questionsof voter intent and that who won the election is “not aquestion of law to be decided by a judge.”

For Sandler, the issue is one of voting rights. Hecited statistical studies indicating that level of technology,training of election workers, maintenance of machinesand assistance to voters vary district by district accordingto voter income and ethnicity — giving some voters abetter chance of having their vote counted than others.

He maintained that no matter what system is used, aclose election will require a manual recount. Electioncodes therefore must include a provision for manuallycounting ballots in close contests. He agreed that manualrecounts require standards for counting votes. These couldbe established through model legislation or administrativerules, but he also argued that common law vote countingstandards are well known and sufficient to the task.

Cardwell put the Florida race in historical perspec-tive. He said the voting equipment industry had beenpredicting a disaster for years. The problem of “hangingchad” surfaced in the 1970s. In 1988, the Connie MackSenate race produced a similar result. The Florida legis-lature was informed that there was no recount process inplace and that canvassing boards needed more money,staff and training to avoid a repeat. Unfortunately, thatadvice was not heeded.

Cardwell was quick to point out, however, that theFlorida experience could have happened anywhere.Elections are at the bottom of funding priorities. When itcomes to roads or voting machines, roads get the money.

Cardwell believes one of the greatest challenges forFlorida will be responding to the Equal Protection rulelaid down by the U.S. Supreme Court in Bush v. Gore,121 S. Ct. 525 (2000). Cardwell said this is because theFlorida elections code does not speak to statewide racesand will need to be supplemented to comply with thecourt’s decision. He said this may mean creating a


Charting the Course of Election ReformAfter Bush v. Gore

By William S. Morrow, Jr.*

* Associate Editor for Section News; Chair, TransportationCommittee; General Counsel, Washington Metropolitan AreaTransit Commission. continued on page 23

restrictions. Thus, in a sense, Article X in the interna-tional trade arena accomplishes what the publicationrequirements of the Administrative Procedure Actrequire in the domestic context. Moreover, Ms. Kunzersuggested that the developing case law of the WTO dis-pute resolution Appellate Body is requiring adequatenotice and an opportunity to comment before a nationmay adopt measures that restrict trade. Similarly, theTBT agreement and the SPS agreement require coun-tries to publish proposed rules and provide an opportu-nity to comment. As to the WTO itself, Ms. Kunzerindicated that there was only the barest glimmer ofallowing interested persons to participate in its proceed-ings. She noted that some dispute resolution bodies hadallowed the filing of amicus briefs, albeit apparently onlywith the consent of one of the party states. The practiceunder NAFTA, however, was much more hopeful.Chapter 11 of NAFTA specifically provides that affectedprivate entities may challenge unfair regulation of privateinvestment activity that is inconsistent with NAFTAprovisions, and the North American Agreement onEnvironmental Cooperation (NAAEC), NAFTA’s envi-ronmental side agreement, sets up an innovative forumfor direct public involvement. Any person may file sub-missions asserting that a party is failing to enforce itsenvironmental law effectively, and this triggers a processby which the Commission on EnvironmentalCooperation (CEC) investigates and can make non-binding rulings on the basis of a published factual record.Ms. Kunzer noted, however, that the NAAEC story isnot all one of openness; the CEC holds its business ses-sions behind closed doors.

Professor Sidney Shapiro of the University of KansasLaw School, who has spearheaded the Section’s attemptto move the ABA to a resolution on harmonization,focused his comments on the adoption of global regula-tory standards and their intersection with our adminis-trative law. Professor Shapiro explained that there arethree ways that international standards become estab-lished as domestic standards. One involves a disputeadjudicated by the WTO dispute resolution bodies upona claim that a United States regulatory standard is a dis-guised trade barrier because it is stricter than a recog-nized international standard. While technically an

At the Spring Meeting at Sanibel Island, Florida,the Section presented a program on theEmerging Field of International Administrative

Law: Its Content and Potential. Professor EleanorKinney of the University of Indiana Law School atIndianapolis, who recently spent a year in Argentina,was the moderator of the program and introduced thetopic with short primer on public international law. Sheexplained that there are four general types of publicinternational law organizations:

• Organizations within the United Nations, such asthe United Nations Environmental Program (UNEP),

• Specialized UN agencies, which are autonomousbut with a connection to it, such as the United NationsEducational, Scientific and Cultural Organization(UNESCO) and the World Bank,

• Regional intergovernmental organizations, such asthe Organization of American States and the Council ofEurope,

• Supranational Organizations, such as the EuropeanCommunity.

She then explained how some of these organizationshave law-making powers, such as the World HealthOrganization; some engage in adjudication; and someinvolve judicial review, such as the International Courtof Justice. International administrative law, ProfessorKinney said, is in its infancy.

With that background, Kathleen Kunzer of theChemical Manufacturers Association addressed the nascentadministrative processes under the World TradeOrganization (WTO) and the North American Free TradeAgreement (NAFTA). The WTO is comprised of severalagreements, of which the most well known is the GeneralAgreement on Tariffs and Trade (GATT) but which alsoincludes the Agreement on Technical Barriers to Trade(TBT) and the Agreement on Sanitary and PhytosanitaryMeasures (SPS). Information on the WTO may be foundat its web page: http://www.wto.org. These agreementsthemselves foster the development of basic administrativelaw procedures in developing nations. For example,Article X of the GATT requires that members publishall “laws, regulations, judicial decisions and administra-tive rulings of general application” pertaining to trade


International Administrative Law Program

By William Funk*

* Professor of Law, Lewis & Clark Law School; Editor-in-Chief,Administrative & Regulatory Law News. continued on page 26

On May 18, President Bush issued ExecutiveOrder 13211, 66 Fed. Reg. 28355, concerningregulations that significantly affect energy sup-

ply, distribution, or use. President Bush’s order builds onthe framework of President Clinton’s Executive Order12866 by requiring that executive agencies prepare aStatement of Energy Effects with regard to a “significantenergy action.” A significant energy action is a signifi-cant regulatory action under E.O. 12866 that is either“likely to have a significant adverse effect on the supply,distribution, or use of energy” or designated by theAdministrator of the Office of Information andRegulatory Affairs as a significant energy action.

A SEE is to contain a “detailed statement” (the samewords used by the National Environmental Policy Act todescribe Environmental Impact Statements) relating to“any adverse effects on energy supply, distribution, oruse(including a shortfall in supply, price increases, andincreased use of foreign supplies)” that would result fromadopting a proposed significant regulatory action. Inaddition, SEEs are to contain “reasonable alternatives” tothe proposed action and the “expected effects of such

alternatives on energy supply, distribution, and use.”Agencies are to provide SEEs to OIRA together withtheir related submissions under E.O. 12866 prior to theproposal and final adoption of the significant regulatoryaction. Agencies must also publish the SEE or a summa-ry in the Federal Register with the notice of proposedrulemaking and the final rule. The order states that itdoes not create any judicially enforceable right or duty.

Like President Clinton’s orders on federalism, envi-ronmental and safety impacts on children, and civil jus-tice reform and President Reagan’s orders on takings,federalism, and the family, President Bush’s order appearsto be responsive to a particular political problem.Commentators generally have been skeptical as to thebenefits of the earlier orders, and the Section sponsoredan ABA resolution that called upon the President andCongress to think twice before adding to the prolifera-tion of specialized impact studies. At the least, the neworder would seem to confirm that the new administra-tion is not interested in wholly rewriting the Presidentialoversight mechanisms that have remained essentially thesame since President Reagan.


Bush Order on Energy Regulations

The ABA House Committee on Technologyand Communications at its San Diego meet-ing approved two new initiatives, which they

hope to have ready for the Chicago Annual Meeting:a live webcast of the House debate, and a web-baseddiscussion board (or “webboard”) for agenda items.

WebcastThe intent is to provide a real-time streaming video ofthe House debate in Chicago, which will be accessibleby any member (or the public) from the ABA’s website. The goals in doing so are: to increase memberawareness of the workings of the House, to allow con-stituents to see their representatives in action, to allowlawyers to watch the debate, and to demonstrate thepotential of streaming video as a means of providingcontent to members. Hopefully, this would be inplace for the Chicago meeting for two primary rea-sons: the Ethics 2000 debate should generate a lot of

interest from the membership, and Chicago as thehome base for the ABA should facilitate making thenecessary arrangements.

Webboard The webboard will be a place on the ABA site wheremembers of the House can discuss agenda items listedfor the upcoming meeting. It will allow for threadedconversations, so that members can follow a discus-sion as people post their thoughts, proposed amend-ments, etc. The site will be able to be viewed byanyone, although only House members will beallowed to post. The board will be configured so thatHouse members who wish to be notified of newposts about particular threads can receive emails noti-fying them. The desire is to organize the webboardwith separate threads for each agenda item, with thefirst message containing a link to the proposed rec-ommendation (once it has been calendared).

New ABA Website for House of DelegatesMatters in the Works

The Gore-Lieberman Legal Team• John Hardin Young, Former Section Chair, who coun-

seled the Florida legal team on election law issues andstrategy, and represented Vice President Gore in theactual recount process

• Joseph Sandler, Co-Chair of Elections Committee, who asGeneral Counsel to the Democratic National Committee,was a senior advisor to the Gore-Lieberman legal team

Television, Radio and Press Commentators• C. Boyden Gray, Chair-Elect of the Section, who was

Counsel to Vice President and then President George Bush• David Cardwell, Former Council Member, who served

as Director of Florida’s Division of Elections and asStaff Director for Ethics & Elections, Florida House ofRepresentatives, was CNN’s regular commentator onFlorida election law issues

• Trevor Potter, Former Council Member and currentCo-Chair of Elections Committee, who is a formerChair of the Federal Election Commission

• Lyn Utrecht, Elections Committee Advisory Member,who served as General Counsel to the Gore-Lieberman Campaign Committee

• Thomas Josefiak, Elections Committee AdvisoryMember, who serves as Chief Counsel to theRepublican National Committee

• Jamin Raskin, Co-Chair of the Elections Committee,who served as legal adviser on Presidential Debateissues to the Nader Campaign Committee

The Judiciary• Chief Justice William Rehnquist, Former Council Member• Justice Antonin Scalia, Former Section Chair• Justice Stephen Breyer, Former Council Member

None of the individuals listed above are thought of as“shrinking violets” when it comes to articulating viewson complex or controversial legal issues. Neither arethose individuals who have been honorees at our lastfour Annual Dinners honoring, respectively, all formerSolicitors General, Attorneys General, Counsels to thePresident, and Assistant Attorneys General for TheOffice of Legal Counsel. And, neither are all of theother past and present members of the Section. Maybethat common factor, coupled with a chance to socializeafter a good debate, is the secret of our success. Comesee for yourself at one of our upcoming meetings!


Bush v. Gore: Section Members Square off in theCourts and on the Air, but Not after Work

by Warren Belmar*

* Managing Partner, Capitol Counsel Group, LLC; formerSection Chair; and Chair, Section Fellows Committee.

For many years now there has been a longing inWashington for the “good old days” when partici-pants in strong and highly partisan political debates

would thereafter renew their friendships over drinks anddinner while discussing family, sports, and the issues ofthe day. This longing exists as well for many within thenation’s legal community, where the intensity of opin-ions and feelings on complex and controversial legalissues have often marred the civility of discourse amongacademics, practitioners, and judges.

As members of the Administrative Law andRegulatory Practice Section of the American BarAssociation, we are lucky to be a part of a group thatoffers its members the opportunity to satisfy these long-ings by providing a venue for the friendly sharing of dif-fering views between and among colleagues. Whether atscholarly programs and debates, or intellectually stimu-lating quarterly meetings of our Section’s Council, ourmembers have always looked forward to the next oppor-tunity to continue unfinished dialogues on cutting edgeissues with friends, colleagues, and even strangers.Never has this feeling of camaraderie and respect for theideas of others been more challenged, and its strengthproven to be more worthwhile, than during the 38 hec-tic days following the presidential election.

During November and December of last year, many cur-rent and former members of our Section were called uponto play important roles on the Bush and Gore legal teams.Others were called upon to help explain and/or opine uponthe legal issues as commentators on television, radio, and inthe press. And, still others were called upon to help resolvethose legal issues as members of the judiciary. The followingis a list of some of those individuals who in recent years haveeither been active in the Section, participated in a Sectionprogram, or attended one or more Section events:

The Bush-Cheney Legal Team• Theodore Olson, Former Council Member and Section

Delegate, who successfully argued both SupremeCourt cases

• Ben Ginsburg, Former Elections Committee AdvisoryMember, who as General Counsel to the Bush-Cheney Campaign Committee coordinated the effortsof the Florida legal team

12

Supreme CourtNews

by William Funk*

Court Rejects “Catalyst Theory” forQualifying for Attorneys FeesIn Buckhannon Board and Care Home, Inc. v. WestVirginia Dept. of Health and Human Services, 121 S.Ct.1835 (2001), the state had ordered a nursing homeclosed because some of its patients were not able toremove themselves from the building in case of fire.The home sued the state agency, arguing that the statelaw being enforced violated the Fair HousingAmendments Act of 1988 and the Americans withDisabilities Act. The next year, while the case waspending, the state repealed the law. The court dismissedthe case as moot, but the home sought attorneys fees asprevailing parties under the FHAA and the ADA accord-ing to the “catalyst theory.” The catalyst theory positsthat a plaintiff is a prevailing party if it achieves thedesired result because the lawsuit induced a change inthe defendant’s conduct. Every court of appeals exceptthe Fourth Circuit to have considered the issue hasupheld the catalyst theory, but the Supreme Court by a5-4 split found that the term “prevailing party,” the termused in almost every attorneys fee statute, cannot includea person who does not receive a judgment on the meritsor a consent decree. The Court acknowledged thatthere were policy arguments both in favor of the catalysttheory and against it, but it believed that the meaning ofprevailing party, a legal term of art, was so clear as topreclude any resort to policy considerations or legislativehistory. This was particularly true because the Courthad previously held that, given the “American Rule”with respect to attorneys fees, attorneys fees will only beawarded when there is “explicit statutory authority.”

Justice Ginsburg, joined by Justices Stevens, Souter,and Breyer, dissented. Noting that nine different courtsof appeal had approved the catalyst theory, the dissentfound it hard to believe that the term “prevailing party”clearly precluded it. The dissent also found the legisla-tive history and policy arguments supporting the catalysttheory overwhelming.

Whatever the merits of the legal arguments, the prac-tical effects of the decision may be significant. A defen-dant may now drag out the litigation as long as possibleand then comply before decision on the merits and avoidattorneys fees, if it is “absolutely clear that the allegedlywrongful behavior could not reasonably be expected torecur.” United States v. Concentrated Phosphate Export Assn.,

393 U.S. 199, 203 (1968). For example, an agency maydelay in releasing material under the Freedom ofInformation Act notwithstanding a plaintiff ’s suit forrelease, but so long as it releases the information beforejudgment on the merits, the plaintiff will apparentlyunder Buckhannon be unable to recover attorneys fees.Cash-poor plaintiffs attorneys are likely to be disinclinedto bring litigation in which a defendant may force it toincur significant litigation expenses that may not be reim-bursed if the defendant complies before judgment. Onthe other hand, the decision will certainly alleviate theconcern expressed by the Court that the possibility oflarge attorneys fee awards was an incentive for plantiffs tobring questionable claims.

Court Explains Limits of Equitable Discretionin Enforcing RegulationsIn United States v. Oakland Cannabis Buyers’Cooperative, 121 S.Ct. 1711 (2001), the United Statesbrought an action to enjoin an organization from dis-tributing marijuana pursuant to California’s law allowingdistribution of marijuana for medical purposes. Theorganization claimed that the federal ControlledSubstances Act prohibiting the distribution of marijuanafor any purpose (other than for government-approvedresearch) should be construed to contain a defense ofmedical necessity. The Court unanimously agreed thatthe Act did not admit of such a defense. The Courtstated that it is not clear that there can ever be a necessitydefense not recognized by statute, but it is clear that anecessity defense cannot exist when the statute itselfforecloses such a defense. Moreover, there is no require-ment that the statute explicitly foreclose the defense.The Court found that the provisions of ControlledSubstances Act “leave no doubt that the defense isunavailable” under that Act.

The organization also argued that even if there wasno defense under the Act to distribution of marijuanafor medical purposes, courts have discretion under theirequity powers not to enjoin the distribution for medicalpurposes. In support of its argument, the organizationcited cases in which courts had refused to issue injunc-tions to persons found violating regulatory laws. See,e.g., Amoco Production Co. v. Gambell, 480 U.S. 531(1987); Weinberger v. Romero-Barcelo, 456 U.S. 305(1982); Hecht v. Bowles, 321 U.S. 321 (1944). TheCourt agreed that a statute that gives courts the powerto enjoin violations does not, absent more specific lan-guage, require a court to issue an injunction. However,a court’s discretion is limited by the policy decisionsmade by Congress. If Congress has decided that the dis-

* Professor of Law, Lewis & Clark Law School; Editor-in-Chief,Administrative & Regulatory Law News.




tribution of marijuana is not allowed, then courts do nothave discretion to allow it. “Their choice (unless thereis statutory language to the contrary) is simply whether aparticular means of enforcing the statute should be cho-sen over another permissible means; their choice is notwhether enforcement is preferable to no enforcement atall.” Thus, a court could not in the exercise of its equityjurisdiction decide that non-enforcement of theControlled Substances Act with respect to the distribu-tion of marijuana for medical purposes was appropriate.Its only choice was whether enforcement was moreappropriate by means of injunction or by means of nor-mal criminal enforcement, the other means of enforce-ment provided by the Act.

Prisoner Must Exhaust AdministrativeRemedies Even if Such Remedies CannotProvide the Relief RequestedUnder the Prison Litigation Reform Act of 1995(PLRA), no prisoner may file a Section 1983 action infederal court with respect to prison conditions “untilsuch administrative remedies as are available are exhaust-ed.” In Booth v. Churner, 121 S.Ct. 1819 (2001), theprisoner alleged that prison officials had mistreated him,and he sued in federal court under Section 1983 formonetary damages. The prisoner did not exhaust theadministrative grievance process provided by the prisonsystem, but monetary damages were not an availableremedy. The question presented was whether his suitshould be dismissed because he had not exhaustedadministrative remedies as required by the Act. TheSupreme Court unanimously held that the suit shouldbe dismissed for failure to exhaust.

The parties were agreed that, if an administrativegrievance process could not provide any relief whatsoeverfor the claimed problems, the statutory language wouldnot require exhaustion. The parties were also agreed thatthe prison’s grievance process could provide certainforms of relief for the types of mistreatment the prisoneralleged, although it could not provide the one form ofrelief, monetary damages, sought by the prisoner.

The Court noted that in McCarthy v. Madigan, 503U.S. 140 (1992), it had held that a prisoner suing formonetary damages need not exhaust administrativeremedies that would not provide the requested relief.But that case predated the PLRA. Indeed, in that casethe Court had interpreted a predecessor provision thatallowed a court to require exhaustion when an adminis-trative remedy would be “effective.” The Court saidthat, if a person sought monetary damages and theprison grievance system did not provide for damages,whatever relief that prison system might grant would notbe “effective.” Because Congress changed the law by,

among other things, deleting the reference to “effective”remedies, the Court in Booth believed that Congress“meant to preclude the McCarthy result.”

In language that could be equally relevant to exhaus-tion questions under the APA, the Court noted in afootnote that because Congress in the PLRA had man-dated exhaustion notwithstanding the presence of com-mon-law exceptions to the exhaustion requirement,courts are not free to excuse a failure of exhaustion.

Court Holds That There Is No Private Right ofAction for Disparate Impact Discriminationunder Regulations Issued under Title VI of1964 Civil Rights ActIn 1990 Alabama amended its constitution to declareEnglish as the official language of the state. Subsequently,pursuant to this provision and to advance public safety,the state began to administer all of its drivers’ licenseexaminations only in English. Persons whose native lan-guage was not English brought suit, claiming that it hadthe effect of subjecting them to discrimination on thebasis of their national origin.

Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et seq., prohibits discrimination on the basis ofrace, color, or national origin in any program or activityreceiving federal funds. Alabama’s Department of PublicSafety, which administers the examinations, receives fed-eral funds. The Court has construed Section 601 of theAct, 42 U.S.C. § 2000d, the section containing the actu-al prohibition, as creating a private right of action butonly prohibiting intentional discrimination, not disparateimpact discrimination. Thus, the fact that the English-only examination might have a disparate impact on per-sons from certain other countries would not constitute aviolation unless the purpose of the requirement was todiscriminate against those persons because of their ori-gin. However, agencies have adopted regulations underSection 602 of the Act, 42 U.S.C. § 2000d-1, that gobeyond the prohibitions of Section 601 and prohibiteven disparate impact discrimination. The question inAlexander v. Sandoval, 121 S.Ct. 1511 (2001), waswhether a person has a private right of action to enforcethose regulations or whether only the agency mayenforce its regulations. The Court, by the same 5-4 splitthat is becoming increasingly familiar, held that there isno private right of action to enforce any regulations thatgo beyond the prohibitions of Section 601.

The Court assumed for purposes of argument thatthe agency regulations themselves were lawful underTitle VI, but it noted that the Court has never held thatthe regulations are valid to the extent that they prohibit

Ethics Issues for Environmental Practitioners9:30 a.m. – 11:30 a.m. The Presidential CLE Centre, Hyatt Regency Hotel, Atlanta Room, Ballroom Level, WestTower. Presented by the Environmental and Natural Resources Regulation Committee.

A panel will use a format of short presentations and case studies to address particular ethics issues often encounteredby environmental law practitioners. Attendees will be engaged in the case studies and follow-up discussions.Panelists come from U.S. EPA, private practice and academia. CLE Credit will be available.

The Cost-Benefit State 2:00 p.m. – 5:00 p.m. The Drake Hotel, The Georgian Room. Presented by the Regulatory Policy Committee.

To a greater or lesser degree, and in fits and starts, America seems to be becoming a cost-benefit state. Prominentexecutive orders require agencies to produce information on the costs and benefits of regulatory action. Courts ofappeals have created a series of cost-benefit default rules, permitting and perhaps requiring agencies, in the face ofstatutory silence, to ensure that the benefits of regulation justify the costs of regulation. Congress itself has showedconsiderable interest in requiring agencies to produce information of regulatory costs and benefits, and even to baseoutcomes on cost-benefit balancing. The Bush administration has endorsed cost-benefit balancing, especially as away of accommodating both environmental and energy goals, but also more broadly.

This panel will address a range of questions about the apparent emergence of a cost-benefit state. Is cost-benefit bal-ancing an obstacle to desirable protection of health, safety, and the environment? What does it overlook? How shouldwe incorporate the rights of future generations? What are the likely effects of cost-benefit analysis? Does cost-benefitanalysis neglect the interests of the poor? Most generally: Does cost-benefit analysis pass, or fail, cost-benefit analysis?

The program will begin with a presentation to Professor Sunstein of the Administrative Law Section's AnnualAward for Scholarship for 2000, honoring his articles on the Clean Air Act and on informational standing to sue.Professor Daniel Ortiz will make the presentation.

A Reception Honoring Victor Rosenblum and His Contributions to Administrative Law 5:30 p.m. – 7:00 p.m. Northwestern University School of Law, 357 East Chicago Avenue

Section Dinner 7:30 p.m. – 9:30 p.m. Sullivan’s Steakhouse, 415 N. Dearborn Street

We would like to thank Bowne Printing for its generous sponsorship of this event.


Section of Administrative Law and Regulatory Practice

2001 Annual MeetingCo-Chairs: Timothy Donovan, Cynthia Drew, Judith Kaleta

The Drake Hotel140 E. Walton Place

Chicago, IL 60611-1545Telephone: (312) 787-2200Guest Fax: (312) 787-1341

FRIDAY, AUGUST 3

Section Continental Breakfast8:00 – 9:00 a.m. The Drake Hotel, The Drake Room

Section of Administrative Law and Regulatory Practice Council Meeting 9:00 a.m. – 12 noon. The Drake Hotel, The Drake Room

Publications Committee Meeting Noon – 1:30 p.m. The Drake Hotel, The Florentine Room

Saturday Afternoon Activities2:00 p.m. – 5:00 p.m, The Drake Hotel

Opening Assembly for the ABA Meeting5:30 p.m. – 7:00 p.m., Symphony Center, 220 S. Michigan AvenueKeynote Speaker, Supreme Court Justice Stephen Breyer (Separate Registration to the ABA Annual Meeting Required)

ABA President’s Reception7:00 p.m. – 9:00 p.m. The Field Museum, 1400 S. Lake Shore Drive (Separate Registration to the ABA Annual Meeting Required)


SUNDAY, AUGUST 5

SATURDAY, AUGUST 4

MONDAY, AUGUST 6

Section Continental Breakfast8:00 – 9:00 a.m. The Drake Hotel, The Drake Room

Section of Administrative Law and Regulatory Practice Council Meeting 9:00 a.m. – 12 noon. The Drake Hotel, The Drake Room

Fourth Annual Regulatory Update and Forecast for Labor and Employment Lawyers9:30 a.m. – 11:30 a.m. The Presidential CLE Centre, Hyatt Regency Hotel, Columbus Hall I/J, Ballroom Level,East Tower. Presented by the Labor and Employment Law Committee

Panelists will highlight significant recent regulatory developments affecting labor and employment issues and willdiscuss the anticipated focus and direction of the Department of Labor, EEOC, and other agencies. A question andanswer session will follow. CLE credit will be available.

So your Client/Organization Wants to set up an Ombudsman’s Office?2:00 p.m. - 3:30 p.m. The Presidential CLE Centre, Hyatt Regency Hotel, Columbus Hall E/F, Ballroom Level,East Tower. Presented by the joint Ombudsman Committee.

What should you advise your client or organization about setting up an ombudsman’s office? The panel will dis-cuss the kinds of conflicts that can be effectively addressed by an ombudsman and how the ombudsman’s officemight fit in different types of organizations, including those with employees who are represented by a union. Thepanel will also address the risks and legal issues you should anticipate, such as those related to confidentiality, thequestion of an ombudsman’s privilege and the retention of data. This program goes beyond recent programs onombudsmen and ombuds’ standards, focusing on the application of the standards in different settings.


various kinds of administrative bodies. The Marine Forests decision has been stayed pending

appeal. If the trial court decision is upheld, however,the practical consequences would be substantial.Without the Commission in place, persons who wish tobuild near the coast can do so under ordinary local zon-ing rules which impose no special restrictions on coastaldevelopment. Presumably, even the Commission’s pastdecisions denying permits could be reopened. Whetherthe legislature or a voter-approved initiative could bringback the Commission in a form that would withstandconstitutional analysis remains to be seen.

Idaho Supreme Court Rules on Ex ParteCommunication to City Council1

The Idaho Supreme Court continues to struggle to cre-ate a modern administrative law. In Idaho HistoricPreservation Council, Inc. v. City Council, 8 P.3d 646(Idaho 2000), a developer sought a permit from theBoise City Historic Preservation Commission to demol-ish an historic building in an officially designated historicdistrict; the Commission denied the permit. The devel-oper appealed the denial to the City Council, whichreversed the Commission’s decision and granted the per-mit. At the beginning of the hearing, however, someCouncil members stated that they had received numer-ous telephone calls concerning the matter; oneCouncilor stated that he had refused to accept any callson the question. The case thus presented the court withthe question of what standards are applicable to an elect-ed council when that body makes a judicial decision.

Relying upon its earlier decision in Cooper v. Board ofCounty Commissioners, 614 P.2d 947 (Idaho 1980), thecourt held that, when acting in a judicial capacity, theCity Council is required “to confine its decision to therecord produced at the public hearing.” 8 P.3d at 649.The ex parte contacts thus violated procedural dueprocess by depriving the Historic PreservationCommission of the opportunity to rebut the evidenceand arguments made in the telephone calls. The CityCouncil argued, however, that its subsequent evidentiaryhearing cured any procedural defects. Since the recordwas not closed, the City Council argued, the HistoricPreservation Commission did have the opportunity toparticipate fully in the decisionmaking process. Thecourt was not persuaded: “the City Council’s receipt ofphone calls violated due process of law.” Id. at 650.

The court’s subsequent statements, however, create

By Michael Asimow*

Lightning Strikes The California CoastalCommissionCalifornia’s Coastal Commission is the Goliath of land useplanning agencies. Within 1000 feet of the mean hightide line, all along California’s vast coastline, nobody canadd a deck to their house, much less build a new one,without first obtaining a permit from the Commission(or, in some cases, from local zoning agencies over whichthe Commission has appellate power). Needless to say,the Commission has made plenty of enemies.

In April, in the case of Marine Forests Society v. CoastalCommission, a trial court decision threatened to put theCommission out of business. The flaw was the compo-sition of the Commission: two-thirds of its members areappointed by legislators (the speaker of the Assembly andthe President pro tempore of Senate each appoint 4 ofthe 12 members). This, the court held, violated separa-tion of powers.

Under federal law, the Marine Forests case would surelybe correct. Buckley v. Valeo, 464 U.S. 1 (1976), and itsprogeny, preclude Congress from retaining the power toappoint rulemakers or adjudicators. California law, how-ever, is much less clear. In O’Brien v. Jones, 999 P.2d 95(2000), the California Supreme Court upheld a schemein which the two houses of the legislature appointed 2 ofthe 5 members of the State Bar Court. The State BarCourt is the agency that decides lawyer discipline cases, atraditional function of the Supreme Court itself.

If the legislature can seize from the Supreme Courtthe power to choose State Bar Court judges, it is difficultto see why the legislature cannot appoint the members ofthe Coastal Commission. After all, land use planning is afunction traditionally carried out by elected officials atthe local level; it is inherently a highly politicized form ofadjudication in which an applicant is pitted against hisneighbors. Many permitting decisions are potentiallytakings for which compensation must be paid. The para-meters of due process are uncertain in the area of landuse planning. It would seem that some separation ofpowers latitude should available in the land use arena.

The Marine Forests decision is also dubious in theCalifornia context. Unlike the federal system, theCalifornia constitution has no appointments clause and itdoes not have a unitary executive. Moreover, it has aconsiderable tradition of legislative representation on

16

News fromthe States

* Professor of Law, UCLA Law School; Co- Chair, StateAdministrative Law Committee; Reporter for Adjudication, APAProject.

1 The information in this portion of the article was supplied by DaleGoble, Professor of Law, University of Idaho College of Law.


honored by the Innovations in American GovernmentAwards Program.

The Innovations Award Program was established by agrant from the Ford Foundation and is run by theInstitute for Government Innovation at Harvard’sKennedy School of Government. This year, the pro-gram reviewed over 1300 new government programsand recognized 99 of them. The winning programs aredescribed at [email protected].

The Judicial Development Program was developed byMinnesota’s Office of Administrative Hearings whichemploys 42 ALJs and Workers’ Compensation Judges. Itsurveys individuals and attorneys appearing before judgesand assures that both the responses and the results for anyone judge will be confidential by having an independentorganization conduct the survey.

Each judge then receives his or her own results andselects a mentor with whom to discuss those results.The Chief Judge receives an office-wide summary of theresults. That summary helps identify office-wide profes-sional development topics and is also made public. TheOffice works with clinical law faculty from theUniversity of Minnesota to provide the judges with pro-fessional development opportunities.

Anyone wanting more information about theMinnesota program, including the public summary ofthe survey results, can find it at www.oah.state.mn.us orcall Ken Nickolai, Chief Administrative Law Judge at(612) 341-7640.

Recent ArticlesDavid Heyndericks, Finding Middle Ground: OregonExperiments with a Central Hearing Panel for Contested CaseProceedings, 36 WILLAMETTE L. REV. 219 (2000).

uncertainty. The City Council urged the court to adoptthe standards employed in Oregon which, in sum,require disclosure of ex parte contacts and focus judicialreview on the fundamental issue of the bias of the tri-bunal. See Neuberger v. City of Portland, 607 P.2d 722(Or. 1980); Tierney v. Davis, 536 P.2d 435 (Or. App.1975). The court appears to have accepted thisapproach, but its statements are ambiguous.

Justice Kidwell (with Justice Schroeder) dissented, argu-ing that “[l]ocal government official who have been electedhave a necessary obligation to be receptive to constituentconcerns.” Id. at 651. The dissenters felt that a require-ment that ex parte communications be logged was not onlyunduly burdensome but also would do little to reduce therisk of bias. They were willing to accept the statements ofthe councilors that they had not been affected.

A rule holding that any ex parte communication to anelected official such as a city councilor who exercisesjudicial power on occasion is too rigid. Due process, asis often noted, requires basic fairness not perfection. Butthe dissent also overstates its case — after all, districtcourt judges are “[l]ocal government official who havebeen elected.” The requirement that conversations belogged that the court may have adopted is, of course, thefederal resolution of the issue and does provide the courtwith additional information — but it is only indirectlyrelevant to the issue of bias. A more direct approach tothe ex parte contact-bias problem would be to do whatneither the court nor the dissent attempted: evaluate thedecision to permit the razing of the historic structure todetermine whether it was a reasonable decision on thefacts in the record rather than using a procedural device toavoid the difficult issue.

Minnesota’s ALJ Development ProgramReceives Innovations in Government Award2

Minnesota’s Judicial Development Program has been

2 The information for this paragraph was provided by Ken Nickolai,Chief ALJ, Minnesota Office of Administrative Hearings.

could not cosponsor the proposal as currently wordedbecause: (1) the term “administrative judiciary” is notdefined in the resolution or report; (2) the report does notspecify when the Model Code would not apply; (3) therequirement of a hearing prior to removal “for any otherreason” is too broad; and (4) the report does not adequate-ly describe the problem or the efforts by states to solve it.

Felter responded that making the report brief was aconscious decision on the Division’s part to make it easier

to digest. The omission of examples on when the ModelAct would not apply was a conscious decision on theDivision’s part, as well. The Division was concerned thatreaders might wrongly conclude the examples weremeant to be exhaustive and including every conceivableexample was not feasible. Felter assured the Council thathe would convey the Council’s concerns to the Division,but he went on to say that although the Division wouldprefer the Section to join the list of cosponsors, theDivision believes it has enough support from other sec-tions and the state bars to get the resolution and reportpassed by the House as currently worded.

CouncilCapsules continued from page 5

David M. Driesen, Getting Our Priorities Straight:One Strand of the Regulatory Reform Debate, 31ENVTL. L. REP. (Envtl. L. Inst.) 10,003 (2001).Critics of the current system of regulation, includingCass Sunstein and Justice Stephen Breyer, have fre-quently claimed that the system does not establish sen-sible priorities. This article aims at establishing a theoryof priority setting to help clarify the precise meaning ofclaims that cost-benefit analysis (CBA) will assist inimproving priority setting. The author begins with thepremise that regulatory reform advocates infer prioriti-zation defects from evidence of allocative inefficiency.This explains, at least in part, some reformers’ endorse-ment of CBA as a priority-setting mechanism. Yet fre-quently CBA is endorsed as a means of creating betterordering of regulatory priorities, while what is at stakeis a broader reform that involves the actual stringencyof regulation. The article explains the law of prioritysetting, with examples from the law of pollution con-trol. It then analyses Breyer’s and Sunstein’s claims thatregulatory priorities are askew and critiques the asser-tion that CBA will improve priority setting. The focusby regulatory reform advocates upon priority settinghas, the author concludes, diverted attention fromimportant questions such as agency resource availability,public perceptions of risk, and principles to governgovernment ordering and agency selection.

Robert W. Hahn and Robert E. Litan, AnAnalysis of the Third Government Report on theBenefits and Costs of Federal Regulations, Availablefrom the SSRN Electronic Paper Collection:http://papers.ssrn.com/paper.taf?abstract_id=243534. This paper critically reviews the draft of theOffice of Management and Budget’s third report onthe benefits and costs of federal regulation. The pur-pose of this analysis is to offer constructive recommen-dations for improving that report. The authors con-clude that the report represents a small improvementover the second report. There is, however, room foreven more progress. They suggest that OMB makegreater use of its in-house expertise to refine estimatesof benefits and costs and that it place greater emphasison those regulations that do not pass a benefit-cost testbased on numbers provided by agencies themselves.Using agency numbers reported by OMB, we calculatethat about ten recent regulations would not pass a strictbenefit-cost test. The OMB should either suggesteliminating or reforming these regulations or explainwhy they should be kept in place. We also believe thatOMB should assemble a scorecard that would assess

and compare the quality of regulations and provideguidance on standardizing the content and summary ofregulatory analyses. Such changes in presentationwould make it easier for interested parties to under-stand the impacts of regulations and to determineagency compliance with legislation, executive orders,and OMB guidelines.

Thomas W. Merrill and Kristin E. Hickman,Chevron’s Domain, 89 GEO. L.J. 833 (2001). Asthe two-step Chevron approach to determining whencourts should defer to agency interpretations of statuteshas expanded in influence, questions about when theChevron doctrine applies have proliferated. This arti-cle identifies fourteen questions about Chevron’sdomain that remain unresolved. The article argues thattwo background principles are important in answeringthese questions, each suggesting that Chevron has a rel-atively narrow domain. First, there are two deferencedoctrines – mandatory deference as recognized inChevron, and discretionary deference as reflected inSkidmore – and Skidmore deference is always availableas a fallback when Chevron does not apply. Second,Chevron deference rests most plausibly on impliedcongressional intent to delegate primary interpretation-al authority to an agency, and hence the scope ofChevron deference is subject to ultimate control byCongress. These two background principles lead inturn to three more specific operational principles: (1)agencies are entitled to Chevron deference whenCongress has authorized them to make decisions undera statute that bind persons outside the agency with theforce of law; (2) an agency interpretation is entitled toChevron deference only insofar as it is rendered in aformat having the force of law; and (3) Chevron defer-ence does not apply if the statutory circumstances sug-gest that Congress had a clear intent to the contrary.The article concludes by showing how these opera-tional principles can be used to provide principledanswers to each of the fourteen questions aboutChevron’s domain that remain unanswered.

Christopher H. Schroeder & Robert L.Glicksman, Chevron, State Farm, and EPA inCourts of Appeals During the 1990s, 31 ENVTL. L.REP. (Envtl. L. Inst.) 10371 (2001). The authorspresent a thorough and systematic analysis of decisionsin which U.S. EPA or its administrator was a namedparty in the federal courts of appeals during the 1990s.Relying on a data base of over 300 cases, the main top-ics of the study are judicial review of statutory inter-


Recent Articlesof Interest

the court based its rejection on State Farm reasoneddecisionmaking grounds, vacating the rules in questionbecause EPA’s decisionmaking process did not ade-quately evaluate benefits in light of costs. While differ-ent than an explicit reversal of Lead Industries Ass’n v.U.S. EPA, as sought in Whitman, these cases may pro-vide authority to parties seeking increased judicialscrutiny of costs and benefits through application of thereasoned decisionmaking doctrine.

Peter L. Strauss, Publication Rules in the RulemakingSpectrum, Available from the SSRN ElectronicPaper Collection: http://papers.ssrn.com/paper.taf?abstract_id=262023. The American rule-making spectrum ranges from one Constitution,through hundreds of congressional statutes, thousandsof administrative regulations, and tens of thousands ofimportant guidance documents to innumerable morecasual agency documents such as press releases or let-ters of advice. Our legal system treats constitutions,statutes, and regulations, if valid, as binding text, sub-ject only to the requirements that they be authorizedby the superior authority and appropriately adoptedfollowing designated procedures; if valid, each of themhas legislative effect on government and citizen alike,until displaced by another text validly adopted at thesame or a higher level. The innumerable casual itemsat the base of this pyramid, while often in fact influen-tial on private conduct, are denied any formal juraleffect. It is at the level of important guidance docu-ments that one finds confusion; confusion whetherthey are legitimate instruments of agency policy or aruse to evade the higher procedural obligations associ-ated with adopting regulations; confusion whether anagency may give them any jural effect and, if so, towhat degree; and confusion whether and to whatextent they must be respected by the courts. Since thefrequency with which these documents are preparedsuggests their importance, this confusion is regrettable.Generally ignored provisions of the AdministrativeProcedure Act, 5 U.S.C. 552(a)(1) & (2), appear torecognize that these documents may be treated as ifthey were precedents (not legislative documents) ifthey have been appropriately published. Hence, theymay be described as “publication rules,” to distinguishthem from the more formal regulations that are adopt-ed following notice-and-comment procedures and thatenjoy, if valid, legislative effect. The paper builds onthese provisions to critique recent judicial decisionsand to suggest a general approach to publication rulesfollowing the model of precedent.

pretation and of EPA’s use of science in its rulemakingproceedings. In both the statutory interpretation andscientific areas, the authors conclude, courts have evi-denced a reluctance to overrule agency decisions whendoing so requires disagreeing with the agency on ques-tions of degree or questions of trading off different pol-icy considerations against one another. In the scientificarea, this reluctance manifests itself in decisions declin-ing to second-guess agency decisions about whetherthe data upon which EPA relied was inferior to dataproposed by petitioners, whether EPA adequatelyassessed the weight of the evidence, and whether mod-els used by EPA were inferior to other models. On theother hand, the authors note that when attacks onEPA’s reasoned decisionmaking with respect to scientif-ic issues could be characterized as pointing to a conclu-sion reached without any factual support, to a technicalmodel unsuited to the issue, to a link in its reasoningprocess left completely unexplained, to internallyinconsistent reasoning, or to a relevant factor left unan-alyzed, those attacks were more successful. The studyalso provides a comprehensive picture of the kinds ofchallenges brought under the reasoned decisionmakingdoctrine, and of the specific sorts of disagreements instatutory interpretation between the agency and thecourts that produce judicial reversals. It provides evi-dence that, overall, EPA is much more successful in itsstatutory interpretations than other studies have sug-gested, with the differences in results attributable toselection bias in other studies. Finally, the study findsthat the “Chevron effect” of increased deference toagency interpretation has persisted into the 1990s, atleast with regard to EPA. The study refutes the sugges-tions that EPA fares worse than other federal agenciesin the judicial review process and that the agency failsto adequately justify its rulemaking choices.

Richard G. Stoll, Cost-Benefit Analysis Through theBack Door of “Reasoned Decisionmaking?”, 31ENVTL. L. REP. (Envtl. L. Inst.) 10,228 (2001).The author, examining the D.C. Circuit’s decisions inAmerican Petroleum Inst. v. U.S. EPA and ChemicalManufacturers Ass’n v. U.S. EPA, submits that the courtprovided a basis for increased judicial scrutiny of costand benefit actions, using a rationale that may surviveWhitman v. American Trucking Ass’n. In both cases, thestatute in question was silent on whether EPA wasrequired to consider costs and benefits. The courtrejected the petitioners’ claims that EPA had exceededits statutory authority, and rejected conclusory findingsthat were not buttressed by the record. In both cases,


review of final OFAC actions.”The Commission’s report to Congress lists twelve

specific recommendations for further action:1.Congress should eliminate the Kingpin Act’s

preclusion of judicial review.2.Congress should establish a system of administra-

tive review with respect to actions taken by theSecretary or his designee under the Kingpin Act andIEEPA.

3.Congress should clarify the standards for Tier IIdesignations.

4.Congress should consider eliminating OFAC’sauthority to block assets during the pendancy of aninvestigation.

5.Congress should require OFAC to make itslicensing procedures more responsive to the legitimateneeds of U.S. persons affected by blockings.

6.Congress should conform the Kingpin Act’s civilpenalties more closely to those in IEEPA.

7.OFAC should promulgate regulations that reflectOFAC’s current civil penalty policy and establish safeharbors.

8.Congress should amend the criminal penalty pro-visions of the Kingpin Act.

9.OFAC should publish proposed sanctions regula-tions for public notice and comment unless exigentcircumstances are present.

10.OFAC should make its operations and decision-making standards more transparent.

11.Congress should establish an advisory commit-tee to provide a forum for dialogue between OFACand the affected U.S. business community.

12.Congress should appropriate additional funds toOFAC as necessary to implement the Commission’srecommendations, if adopted, and to facilitate admin-istration of the Kingpin Act.

The Panelists’ RemarksThe program was held in the Section’s headquarters inWashington, DC, in mid-February of this year. ThomasE. Crocker, a partner at Alston & Bird LLP, who repre-sents a variety of domestic and foreign clients, includingmany financial institutions, served as moderator. Thespeakers included: David H. Laufman, who was staffdirector and deputy chief counsel for the Commissionand is currently working in the Office of Public Integrityat the U.S. Department of Justice; John L. Ellicott, asenior counsel at Covington & Burling with a practice inexport controls, economic sanctions, and foreign blockingmeasures; Jeff Taylor who was majority counsel for theSenate Judiciary Committee at the time of the panel; R.Richard Newcomb, the director of OFAC; and BruceZagaris, a partner in Berliner, Corcoran & Rowe, L.L.P.,who works extensively in counseling and defending white


of the Administrative Procedure Act in making Tier IIdesignations, adopting regulations or imposing civilpenalties. Judicial review is available for civil penaltiesimposed by the Secretary of the Treasury for violationsof licenses, orders, rules, and regulations issued underthe Act. 21 U.S.C. § 1906(b), (c). The Act specificallydenies review of “designations” and other executivebranch “determinations, identifications [and] findings”under the Act. 21 U.S.C. § 1904(f).

The Commission’s ReportThe Commission prepared its report after reviewing per-tinent precedent, gathering documents, meeting infor-mally with representatives of government agencies, busi-nesses and financial institutions, and holding public hear-ings. The report contains several important conclusions.

First, the Commission concluded that any effort by thegovernment to preclude judicial review of the Secretary’sdesignations of foreign Kingpin accomplices on constitu-tional grounds “almost certainly would be rejected by theCourts.” At the same time, the Commission felt therewas “no basis under applicable precedent to conclude thatthe Kingpin Act’s preclusion of judicial review of statutoryclaims pursuant to the [APA] is unconstitutional.”Nevertheless, the report takes the position that in the lat-ter instance, preclusion “is both unnecessary and inconsis-tent with the accountability of government actions inher-ent in sanctions programs established pursuant to IEEPAand in numerous other regulatory schemes.”

The Commission also determined that although theblocking of assets of foreign persons implicates the DueProcess Clause, a foreign person without substantial con-nections to the United States does not have standing tochallenge the action, the government is not required toprovide notice and hearing in advance, and blocking isnot an unlawful “taking.”

The Commission was unable to assess the impact ofthe Kingpin Act on U.S. businesses because the Secretarydid not make any Tier II designations in 2000 and theCommission was not provided any evidence that U.S.persons were affected by the President’s designations lastJune. The report expresses the Commission’s concerns,however, “about the ability of U.S. individuals and com-panies to comply with the Act, and the potential forinadvertent violations – concerns based in part on theexperience of U.S. businesses in seeking to comply withcomparable sanctions regimes administered by OFAC.”

The report praises OFAC’s professionalism and goodfaith but expresses the belief “that the sound administra-tion of the Kingpin Act and other economic sanctionslaws would benefit from greater openness and respon-siveness by OFAC and from formal administrative

Kingpin Act continued from page 6


collar criminal cases with significant international ele-ments. The government attorneys advised that the viewsthey were expressing were their own and should not beattributed to their employers, past or present.

None of the panelists argued against theCommission’s recommendation that Congress shouldeliminate the Kingpin Act’s preclusion of judicial review,and Zagaris argued that review should be de novo.Likewise, there did not seem to be much disagreementwith the proposition that few, if any, Tier I designeeswould be affected by the Act. As Newcomb noted,“the real action is in prohibiting transactions.” The pan-elists’ remarks accordingly focused on OFAC’s interac-tion with Tier II designees.

Zagaris expressed skepticism at the idea of requiringOFAC to expand its sphere of operations from sanction-ing countries to sanctioning individuals without a con-comitant increase in budgeted resources and without dueprocess safeguards: “Identifying the right person is moredifficult than identifying the right country.” Zagaris alsodisagreed with the Commission’s conclusion that block-ing is not a taking under the Fifth Amendment given theabsence of any time limits in the statute.

Ellicott advocated the use of notice and commentrulemaking in connection with OFAC’s licensing process,by which OFAC issues permits for engaging in otherwiseprohibited transactions, and OFAC’s civil penalty func-tion. He thinks licensing regulations should specify theinformation needed in an application, establish a timetablefor processing applications, require designation of a con-tact within the agency for status checks, and require theagency to issue notice whenever it intends to deny anapplication. As for civil penalties, Ellicott believes OFACshould issue regulations that spell out “when a penaltywill be imposed and how to negotiate a settlement.”

Newcomb responded that OFAC is sensitive to theneeds of the business and legal communities and has twicepublished interim final rules with opportunity for comment.He noted that OFAC maintains a website where new rulesmay be viewed. (See http://www.ustreas.gov/ofac/). Healso mentioned that the civil penalty rules were evolving andthat his office was working on publishing them soon. Hisoffice is also working on internal timetable guidelines forprocessing license applications.

Both Zagaris and Ellicott spoke in favor of reducing themaximum civil penalty of $1 million for violations of thestatute or any license, regulation or order thereunder. AsEllicott pointed out, the maximum civil penalty for a sin-gle violation under IEEPA is $11,000. Ellicott also urgedthat Congress should mandate hearings before an ALJ aspart of the assessment process if OFAC, or Treasury prop-er, does not take that step voluntarily. Zagaris, however,did not think that appointing an ALJ to decide these mat-ters would be an improvement if the standard of judicial

review were “arbitrary and capricious.” As noted above,he thinks judicial review of OFAC actions should be denovo. The middle ground, of course, would be convinc-ing Congress to amend the statute to require a hearing onthe record, which under the APA is subject to a “substan-tial evidence” standard of review.

Jeff Taylor said he could not be specific on when theSenate Judiciary Committee might take up theCommission’s recommendations. He said the goals of theKingpin Act enjoy significant support on the Committeebut acknowledged that the Committee recognizes U.S.businesses have legitimate concerns. He opined that oneCommission recommendation the Committee might findcontroversial is the recommendation that Congress shouldconsider eliminating OFAC’s authority to block assetsduring the pendancy of an investigation. He thought theCommittee was likely to give the administration sometime to digest the report before scheduling any hearings.

ConclusionThe Commission’s recommendations face an uncertainfate in Congress. On the one hand, the intended bene-ficiaries of the Commission’s labors, U.S. persons thatmay be unduly affected by actions taken by the Secretaryof the Treasury under the Kingpin Act, have reason andmerit in their corner. The Act’s creation of theCommission admits of the possibility that U.S. personsmight be unnecessarily burdened by the statute’s generalomission of administrative and judicial remedies. TheCommission’s investigation has revealed that Congresswas right to be concerned. Moreover, precluding judi-cial review of agency action under the statute ultimatelyneutralizes the standards in the Act that are meant toconstrain its implementation by the executive branch.

On the other hand, Congress’s act-first-investigate-later approach has shifted the onus of overcoming institu-tional inertia to the regulated community. And althoughthe Bush Administration may unilaterally adopt theCommission’s administrative review recommendations,Congress must appropriate funds for that purpose, andthe executive branch is powerless to invest the judicialbranch with the jurisdiction to review agency action.Unfortunately, Senator James M. Jeffords’ recent declara-tion of independence from the GOP, tipping the balanceof power in the Senate to the Democrats, has surelydiminished the prospect of any hearings in that house ofCongress in the near future as the members sort outcommittee compositions and revisit their agendas.

One thing is certain. Unless and until Congress bringsthe monetary sanctions under the Kingpin Act more inline with the monetary sanctions under IEEPA, the costto U.S. firms of guarding against inadvertent violationsand the cost of paying for such violations will be greaterthan necessary to achieve the purposes of the Act.


timely and costly administrative and judicial review. Yetmanufacturers are eager to get administrative and judicialreview and have found mandatory fair hearings beforeMedicare contractors – which beneficiaries often finduseful – unduly burdensome.

The Medicare Coverage PolicymakingReformsBIPA establishes required procedures that HCFA mustfollow in making Medicare coverage determinations,particularly at the national level. See 42 U.S.C. §1395y(a). The policymaking procedure must accordnotice to the public and opportunity to comment priorto implementation of any national coverage determina-tion. Similarly, HCFA must provide notice and anopportunity to comment in the meetings of advisorycommittees involved in the coverage policymakingprocesses. Further, in making a national coverage deter-mination, HCFA must consider applicable information,including clinical experience and medical, technical, andscientific evidence. It must also provide a clear state-ment of the basis for the coverage determination(including responses to comments received from thepublic) and the assumptions underlying that basis.HCFA must also make available to the public the data(other than proprietary data) considered in making thedetermination.

In addition, BIPA requires improvements in theprocesses of the Medicare Advisory Committee thatnow advises HCFA in making Medicare coverage policy.Specifically, any advisory committee appointed to adviseHCFA on coverage policy must assure full participationof a nonvoting member in the deliberations of the advi-sory committee and shall provide such nonvoting mem-ber access to all information and data made available tovoting members of the advisory committee. Further, ifHCFA and its advisory committees organize panels ofexperts for particular types of items or services, suchexpert panels may report their recommendations directlyto HCFA without prior approval of the supervisingadvisory committee or its executive committee. Thisreform is designed to address concerns about the tightsupervision of panel decisions in the current MedicareAdvisory Committee.

BIPA has also established an appeals process that canbe invoked to review both national and local coveragepolicies independent of explicit coverage denials in thecontext of claims. This is an extraordinary process thatallows for independent review of Medicare coveragepolicy outside the existing appeals process andMedicare appeals independent of HCFA. Specifically,an aggrieved party – basically a Medicare beneficiary in

need of an item or service – can invoke this appealsprocess. Of note, providers, suppliers and manufactur-ers can only invoke this appeals process through anominal beneficiary.

An aggrieved party can initiate an appeal of an imple-mented national coverage determination to theDepartmental Appeals Board (DAB) of the U.S.Department of Health and Human Services. The DAB’sreview is de novo, and it can consult with scientific andclinical experts, permit discovery, and take evidence toevaluate the reasonableness of the determination. ADAB decision constitutes the final HHS action forwhich judicial review is available.

An aggrieved party can similarly appeal a local cover-age determination made by Medicare contractors to anALJ that adjudicates other Medicare appeals. Thereviewing ALJ has the same latitude of review for localcoverage determinations as the DAB has for nationalcoverage decisions. The ALJ decision is then reviewableby the DAB. A DAB decision on the local coveragedetermination constitutes the final HHS action forwhich judicial review is available. As under current law,an ALJ would continue to have authority to adjudicate anational coverage determination.

Reforms of the Medicare BeneficiaryAppeals Process BIPA has made major changes in the appeals proceduresfor Medicare coverage policy for Medicare beneficiariesfaced with coverage denials for individual claims. Withrespect to the procedures for appealing the individualclaim denials, BIPA has made many changes. First,BIPA consolidates the different appeal process for PartsA and B of the Medicare program into a single system.Second, the statute clarifies the concept and content ofthe initial determinations which are the decisions madeby Medicare contractors from which appeals can pro-ceed. Third, the new law clarifies the procedures forexpediting appeals of negative coverage determinationsby Medicare contractors. Fourth, BIPA establishes firmdeadlines for decisionmaking at different levels of theappeals process, with options for appellants to proceed tothe next level if deadlines are not met.

Suppliers and providers can represent beneficiaries inappeals and also appeal beneficiary claims for whichthey have accepted assignment. As under current law,manufacturers cannot represent beneficiaries in appealsinvolving their products. Any provider or supplier rep-resenting the beneficiary must waive any right to pay-ment from the beneficiary with respect to the servicesor items being appealed. Further, BIPA now imposes apositive responsibility on HCFA to perform outreachactivities to inform beneficiaries, providers, and suppli-ers of their appeal rights.

Medicare continued from page 7


Perhaps the most important reform is the creation ofindependent medical review for the reconsideration ofdeterminations on coverage in individual cases made byMedicare contractors. HCFA must now contract withat least 12 qualified independent contractors (QIC)nationwide to conduct reconsiderations of Medicarecoverage determinations at the request of beneficiariesor HCFA. QICs must be comprised of panels of physi-cians or other health care professionals with ability toconsider clinical experience and medical, technical andscientific evidence associated with the reconsidered cov-erage determination. QICs adjudicate questions ofwhether services in individual cases are reasonable andnecessary and thus covered benefits under the Medicareprogram. Their actual review authority of coveragedeterminations is constrained. They are bound bynational coverage determinations but not local coveragedeterminations.

There are important requirements on the content anddistribution of QIC decisions intended to bring consis-tency to Medicare coverage adjudications. First, theQIC reconsideration must include a detailed explanationof the decision, a discussion of pertinent facts and regu-lations and, where the issue is reasonable and necessaryservices, an explanation of the medical and scientificrationale. Further, the QIC must make its decisionsavailable to Medicare contractors with appeal adjudica-tion responsibilities and also to Medicare+ Choice plansthat handle appeals for Medicare beneficiaries who haveopted to receive care through Medicare+ Choice plansin managed care plans rather than through fee-for-ser-vice Medicare under Parts A and B.

A beneficiary can appeal the QIC decision to an ALJwith further review by DAB. As under current law,both administrative and judicial review for claims over aspecified jurisdictional amount are available. The exist-

ing restrictions under current law for administrative andjudicial review of national coverage policy remain. AnALJ may not review a national coverage determination,except to decide whether the determination has beenapplied correctly to the claim at issue. A court shall notset aside or invalidate a national coverage determinationbecause public rulemaking provisions contained in theAdministrative Procedure Act or the Social Security Acthave not been followed. Further, any case in which acourt determines that the record is incomplete or other-wise lacks adequate information to support the validityof a national coverage determination is remanded backto the Secretary for additional proceedings to supple-ment the record. The court may not determine that anitem or service is covered in the particular case exceptupon review of the supplemented record.

ConclusionThese reforms of the Medicare coverage policymakingand beneficiary appeals processes, effective October 1,2001, are among the most far-reaching in the history ofthe Medicare program. They go a long way to mandateopportunities for notice and participation for all con-stituencies of the Medicare program, including the man-ufacturers of new technologies and devices, which havea real stake in Medicare coverage policy. They also clari-fy and strengthen the appeals process for beneficiarieswho are directly affected by Medicare coverage policy.The frank challenge of these reforms will be to ensurethat they permit full and fair consideration of the newmedical technologies without tying down the resourcesof the Medicare program. The reforms will only beeffective if they ensure that truly necessary and effectivemedical technologies are made available to Medicarebeneficiaries in an expeditious manner at an affordablecost to the Medicare program and taxpayers.

statewide canvassing board at a time when the FloridaSecretary of State’s office is slated for abolition.

Terwilliger said the legislature needs to enumeratewhat qualifies as a vote on a system-by-system basis andthat this needs to be done ahead of time. He alsowarned that the more subjective a standard is the morelikely it will violate the Court’s Equal Protection stan-dard. Florida’s “will of the voter” test probably does notmeet that standard, according to Terwilliger. He thinksStates will feel the pressure to establish statewide trainingand supervision of poll workers.

Sandler said the problem is not that objective stan-dards do not exist. He pointed to the Texas statute andsaid if those standards had been applied in Florida there

would not have been an Equal Protection problem.Florida must have been listening, because on May 10,

2001, Governor Jeb Bush signed into law the FloridaElection Reform Act of 2001, effective January 1, 2002.2001 Fla. Laws Ch. 2001-40. The Act, among otherthings: prohibits the use of punchcard voting systems;provides funding for upgrading county voting systems;requires a uniform ballot design for each voting system;provides standards for equipment testing; substantiallymodifies the standards and procedures for manualrecounts; provides for poll worker recruitment and train-ing; and funds a statewide voter registration database.

If other States follow Florida’s example, the chancesof repeating a near-Presidential election crisis willdiminish. If not, then as Yogi Berra would say, “It’s déjàvu all over again.”

Election Reform continued from page 8


Faced with this obvious reality, enthusiasts of thenondelegation doctrine fall back on the idea that itshould serve merely to prevent “too much” delega-tion. Here we have a classic example of hope beliedby experience. If sixty-five years of experience withthe nondelegation doctrine in the courts should havetaught us anything, it is that no one has figured out aworkable test by which judges can decide how muchis too much.

The history of the doctrine since 1935 is a story offailed efforts to make the doctrine justiciable. Amongthe most famous was then-Justice Rehnquist’s opinionin Industrial Union Dep’t, AFL- CIO v. AmericanPetroleum Inst., 448 U.S. 607 (1980), known as theBenzene case. He would have made the application ofthe doctrine turn on whether Congress had avoided “achoice which was both fundamental for purposes of thestatute and yet politically so divisive that the necessarydecision or compromise was difficult, if not impossible,to hammer out in the legislative forge.” Hundreds ofother delegations could be described by this subjectivestandard. And the consequences of invalidation —elimination of statutory authority for a program untilCongress forges a consensus on issues that, by hypothe-sis, it was unable to resolve earlier — are too drastic forsociety to tolerate haphazard invocations of such a test.The most significant statutory mandates would becomethe most vulnerable.

The opinions of various Justices in American Truckingdid highlight, as prior case law had not, a further diffi-culty with the nondelegation doctrine — the absence ofpersuasive support for the doctrine in the text of theConstitution. Justice Scalia, writing for the majority,sought to ground his analysis in the opening language ofArticle I: “All legislative Powers herein granted shall bevested in a Congress . . . .” In other words, he was sug-gesting (as did Justice Thomas in a concurring opinion)that the legislative power cannot be delegated. Yet, ifthe phrase “legislative power” means what it probablywould suggest to most minds — the power to enunciategeneral edicts that have the force of law — the assertionis patently false, as Justice Stevens noted in a concurringopinion. Scores of agencies routinely exercise that kindof power when they promulgate rules, and a construc-tion of Article I that would nullify their ability to do sois unthinkable. The Scalia-Thomas reasoning worksonly if one ascribes a purely artificial meaning to theterm “legislative power,” so that the case law test we useto implement the nondelegation doctrine (namely, the“intelligible principle” test”) is read back into the defini-tion of “legislative.”

The thoughtful reader will, however, ask: even if thenondelegation doctrine cannot workably be expandedbeyond the shadowy marginal position it now occu-pies, why get rid of it? What harm does it do? Theanswer is that it does promote untoward results — byinducing lower court judges to take it seriously.Ultimately one can’t blame good judges like StephenWilliams and Douglas Ginsburg, the D.C. Circuitjudges who brought us American Trucking, for supposingthat the nondelegation doctrine should sometimes begiven effect. After all, the Supreme Court keeps sayingso. The result of the Court’s continued lip service isthat it elicits attempts to reinvigorate the doctrine,which the Court then has to grant certiorari in orderto intercept. After six decades’ experience, we shoulddoubt that these sporadic and destabilizing challengesto various regulatory programs will actually lead to afruitful result.

Some modern theorists, although not defending theconstitutional nondelegation doctrine as such, doapprove of it insofar as it enables courts to reject certainkinds of statutory interpretations on the ground thatthey would raise nondelegation concerns. For example,avoidance of possibly unconstitutional delegation hasbeen cited as a reason to eschew interpretations thatwould allow regulation of minuscule risks, as inBenzene, or that would intrude on civil liberties. I donot share this view. Canons of construction that woulddisfavor interpretations like these may be attractive ontheir own terms, but they should stand or fall on theirindividual merits — rather than as corollaries of theplainly dubious premise that Congress must wield “alllegislative power.” Such canons are common outsidethe administrative law field; the courts can embracethem or not, as they see fit, without looking to thenondelegation doctrine. Besides, the driving force ofthese judicial decisions is not that administrators weregiven a wide range of choices, but that certain choicesthey made (or might have made) were intrinsicallyoppressive. For example, the main problem with thestatutory construction rejected in Benzene was its per-ceived stringency, not the breadth of the options that itmade available to OSHA.

Well, the nondelegation doctrine’s life span may notbe nearing its close, but my Chair year certainly is. Asmy term reaches its “far from young, fast approachinggray” phase, I would like to thank the many Sectionmembers whose cooperation and spirited participationhas made this year a rewarding experience. I especiallythank our capable Section Director, Leanne Pfautz,whose efficient and knowledgeable management ofthe Section’s functions makes its elected leaders lookgood. It has been a privilege to work with all of you,and I look forward to greeting many of you at theAnnual Meeting.

Chair’sMessage continued from page 2


Supreme CourtNews continued from page 13

disparate impact discrimination. Moreover, the Courtfound that the prohibition against disparate impact dis-crimination could not be based upon Section 601,which was the only section the Court had found toauthorize a private cause of action.

The Court left a major loophole, however, byacknowledging that a plaintiff could sue under Section1983, alleging that a state was violating rights protectedunder federal law — the agency regulations banning dis-parate impact discrimination. As a result, environmentaljustice cases that had been filed as actions under Title VIare now being filed under Section 1983. This will in alllikelihood lead to a case in which the Court will have toface the question whether the agency regulations them-selves are lawful under Title VI. In light of the analysis inAlexander and the Court’s recent cases interpretingCongress’s power to adopt legislation enforcing theFourteenth Amendment, those seeking “environmentaljustice” will not be looking forward to that case.

IRS Longstanding Reasonable Interpretationof Its Regulations is Entitled to DeferenceIn a dispute with players involving free agency rights, theCleveland Indians baseball team agreed to pay certainplayers back pay for the years 1986 and 1987. The pay-ment was made in 1994. The question in United Statesv. Cleveland Indians Baseball Co., 121 S.Ct. 1433(2001), was whether the employer’s FICA and FUTAcontributions with respect to this backpayment should becalculated on the basis of the years in which the paymentwas earned (1986 and 1987) or of the year in which itwas paid. Because the salary caps and tax rates had bothincreased between 1987 and 1994, and because in 1986and 1987 the salary then paid to the players had alreadyresulted in the Indians making the maximum contribu-tions under the then existing caps, whereas in 1994 theplayers involved had not otherwise received any salaryfrom the Indians (meaning that all the backpay would befully subject to the tax rates and caps), the Indians arguedthat the contributions should relate back to the years inwhich the salaries were earned. The government argued,consistent with its longstanding interpretation of its regu-lations, that the contributions should be calculated basedupon the year in which the payment actually was made.

The statute favored the government. Since 1939 ithas referred in various provisions to calculating theFICA and FUTA taxes on the basis of the “wages paid”in a particular year. Moreover, this statutory languagereplaced earlier language that referred to calculating thetaxes on the basis of wages paid “with respect toemployment during the calendar year,” indicating a clear

intent by Congress to change the year of calculationfrom when the wages were earned to when the wageswere paid. The only problem with this clear statutoryinterpretation was a Supreme Court decision in 1946,Social Security Bd. v. Nierotko, 327 U.S. 358. There theCourt held that for purposes of determining an employ-ee’s eligibility for Social Security benefits (whichrequires a certain number of calendar quarters in whichan employee has earned wages) backpay should be calcu-lated as having been received in the calendar quarter inwhich the wages would have been earned, not as havingbeen received when the backpay was actually paid. The Court in Cleveland Indians concluded that Niemotkoparried the thrust of the plain statutory language, but itdid not itself compel the interpretation sought by theIndians. The Court said that in Niemotko, “In all likeli-hood [the holding] reflected concern that the benefitsscheme created in 1939 would be disserved by allowingan employer’s wrongdoing to reduce the quarters of cov-erage an employee would otherwise be entitled to claimtoward eligibility. No similar concern underlies the taxprovisions [involved in the Cleveland Indians case, eventhough both use the same statutory language].” Giventhe conflict between the plain language and the thrust ofNietmotko, the Court said that its role should be to deferto the Commissioner’s regulations as long as they arereasonable. Those regulations, however, are themselvesnot explicit about how to treat backpay. Nevertheless,the IRS “has consistently interpreted them to requiretaxation of back wages according to the year the wagesare actually paid, regardless of when those wages wereearned or should have been paid.”

At this point, a reader schooled in administrative lawwould already have been surprised not to have seenChevron v. NRDC cited. Moreover, following last term’sdecision in Christensen v. Harris County, 529 U.S. 576(2000), and its restatement that agencies’ interpretationsof their own regulations are entitled to strong deference,the reader would expect simple reliance on this doctrinehere. But the Court does not make it simple, saying“We need not decide whether the Revenue Rulingsthemselves are entitled to deference. In this case, theRulings simply reflect the agency’s longstanding inter-pretation of its own regulations. Because that interpreta-tion is reasonable, it attracts substantial judicial deference.Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512(1994).” The bottom line, of course, is the same; theagency wins, receiving deference to its interpretation ofits own regulations without regard to the form in whichthat interpretation is made. Indeed, one wonders why ittook the Court so long to reach that conclusion. Justice Scalia concurred in the judgment. To him thestatutory language was simply unclear how it was to dealwith backpay, and “hence it is an issue left to the reason-able resolution of the administering agency.”

Court Overturns NLRB’s Interpretation of Term“Independent Judgment” Using ChevronThe Court and the National Labor Relations Boardhave had difficulties regarding the supervisory status ornot of certain types of nurses, see NLRB v. Health Care &Retirement Corps. of America, 511 U.S. 571 (1994)(hold-ing that nurses’ judgment was exercised “in the interestof the employer” even when they exercised it for profes-sional or technical matters, rather than for disciplinary orother matters), and in NLRB v. Kentucky RiverCommunity Care, Inc., 121 S.Ct. 1861 (2001), the dif-ference continued.

In Kentucky River the NLRB had determined thatcertain nurses working in the facility were not supervi-sors because they did not exercise “independent judg-ment,” as required by the statute to qualify someone as asupervisor. According to the NLRB, the nurses’ judg-ment was not “independent” because it related to “ordi-nary professional or technical judgment in directing less-skilled employees to deliver services in accordance withemployer-specified standards.” The Court disagreed.An initial question was who had the burden of proof inthe NLRB proceeding as to whether certain employeesare supervisors. Here the Court unanimously agreedwith the NLRB that the burden is borne by the partyclaiming the employee is a supervisor, notwithstandingthat the General Counsel has the burden of proof for allelements of the unfair labor practice. Here, the employ-er wished to claim that the employees were supervisorsand accordingly it was not an unfair labor practice torefuse to bargain with them.

As to the “independent judgment” issue, the Courtstated that the term was ambiguous with respect to thedegree of discretion required for supervisory status, andtherefore it is within the NLRB’s discretion, within rea-

son, to decide what scope of discretion qualifies. In addi-tion, the Court found the NLRB’s conclusion reasonablethat independent judgment can be vitiated by detailedorders and regulations issued by an employer. However,the NLRB’s determination that “professional or technicaljudgment” can never be independent judgment, no mat-ter how much discretion is allowed by the employer, isinconsistent with the statute, the Court said. This part ofthe opinion was 5-4, with Justice Stevens writing a dissentthat was joined by Justices Breyer, Ginsburg, and Souter.

Underlying this dispute over nurses is the NLRB’sattempt to distinguish professional employees, such aslawyers, doctors, and nurses, who necessarily mustsupervise in some senses other employees, but whoshould not be foreclosed from unionization under theNational Labor Relations Act as supervisors. The Courtseemed somewhat sympathetic to this concern, suggest-ing a possible NLRB interpretation of the term“responsibly . . . direct [employees]” in the Act, which isa prerequisite activity for supervisors who do not haveauthority to hire, transfer, suspend, lay off, recall, pro-mote, discharge, assign, reward, or discipline employees.That is, if the “supervision” made by doctors, lawyers,and nurses is not considered “responsibl[e] direct[ion],”then they would not qualify as supervisors under theAct. Here, however, the NLRB had not interpreted thisterm, but instead had interpreted the term “independentjudgment,” the Court could not uphold the agency’sinterpretation.

Kentucky River thus joins the small but growing num-ber of Supreme Court cases that appear to overturnagency interpretations at Chevron’s step two, rather thanstep one, although even that conclusion cannot be cer-tain, because the Court did not organize its analysis in astep one/step two format.


adverse WTO decision does not invalidate the domesticstandard, as a practical matter it may have that effect.This method of affecting domestic law should be ofconcern to United States lawyers because the process isessentially secret and entirely in the hands of governmentrepresentatives. So far, however, this method of extend-ing international standards is more theoretical than realinasmuch as yet there has been no determination that adomestic standard is inconsistent with GATT because itis inconsistent with an international standard.

A second method by which international standardscan affect domestic standards is through the process of“harmonization,” through which nations negotiateamong themselves to adopt uniform regulations, a goalmandated by the SPS and TBT. Under current practice,the United States negotiates with other nations and

when agreement is reached, the applicable federalagency then proposes the new “harmonized” regulationunder the APA. As a practical matter, however, thenotice-and-comment procedure is a pure formality,because the ability of the agency to adopt any changesdepends on its willingness to go back and renegotiatethe terms of the “harmonized” regulation. The recog-nition of the lack of this willingness is behind theSection’s attempt to provide for public input to the har-monization process before its conclusion.

The third method by which international standardsaffect domestic standards is through equivalency determi-nations or mutual recognition agreements. Under thismethod, a domestic agency determines that a foreign (orinternational) standard is the equivalent of a federal stan-dard and therefore the agency will not take enforcement

International continued from page 9


ChairRonald M. LevinSt. Louis, MO314/935-6490

Chair-ElectC. Boyden GrayWashington, DC202/663-6056

Vice ChairNeil R. EisnerWashington, DC 202/366-4723

SecretaryCynthia A. DrewWashington, DC202/616-7554

Assistant SecretaryJonathan J. RuschWashington, DC 202/514-0631

Budget OfficerKathleen A. BuckWashington, DC202/879-5060

Asst Budget OfficerDavid W. RodererWashington, DC 202/974-1012

Section DelegatesErnest GellhornWashington, DC202/319-7104

Ronald A. CassBoston, MA617/353-3112

Immediate Past ChairJohn Hardin YoungWashington, DC 703/216-0039

CouncilMichael J. AstrueBelmont, MA617/484-6166

Phyllis E. BernardOklahoma City, OK 405/521-5181

Steve CalkinsDetroit, MI 313/577-3945

John F. CooneyWashington, DC 202/962-4800

David FrederickWashington, DC 202/514-1030

H. Russell Frisby, Jr.Washington, DC202/296-6650

Judith S. KaletaWashington, DC202/493-0992

Renee M. LandersBoston, MA 617/951-7000

Daniel R. OrtizCharlottesville, VA804/924-3127

Daniel RodriguezSan Diego, CA619/260-4527

Lisa A. WhitneyNew York, NY 212/659-5306

Lynne K. ZusmanWashington, DC202/659-1971

Ex Officio MembersState Administrative LawJim RossiTallahassee, FL850/644-8308

Executive BranchDaniel MarcusWashington, DC202/514-9500

JudiciaryMerrick GarlandWashington, DC202/273-0376

Legislative BranchJames W. ZiglarWashington, DC202/224-2341

Administrative JudiciaryJudith Ann DowdWashington, DC202/219-2557

Administrative ProcessCommittee Chairs

AdjudicationAlan W. HeifetzWashington, DC202/708-5004

John C. Keeney, Jr.Washington, DC202/637-5750

Constitutional Law and Separation of PowersThomas O. SargentichWashington, DC 202/274-4238

Daniel E. TroyWashington, DC202/719-7550

Corporate CounselRichard J. WolfParsippany, NJ 973/496-5286

Dispute ResolutionCharles E. PouWashington, DC202/887-1037

Government Information and Right to PrivacyJames T. O’ReillyCincinnati, OH 513/556-0062

Judicial ReviewMark SeidenfeldTallahassee, FL850/644-3059

Legislative Processand LobbyingWright H. Andrews, Jr.Washington, DC202/347-6875

RatemakingSteven A. AugustinoWashington, DC202/955-9600

Regulatory InitiativesJonathan J. RuschWashington, DC202/514-0631

Sidney A. ShapiroLawrence, KS785/864-9222

Regulatory PolicyRobert W. HahnWashington, DC202/862-5909

Cass R. SunsteinChicago, IL773/702-9498

RulemakingDaniel R. CohenWashington, DC202/482-4144

State Administrative LawMichael R. AsimowLos Angeles, CA310/825-1086

Edward J. Schoenbaum, Jr.Springfield, IL217/524-7836

Government FunctionsCommittees

AgricultureRobert G. HibbertWashington, DC202/756-8216

Philip C. OlssonWashington, DC 202/518-6366

Antitrust andTrade RegulationWilliam H. PageJackson, MS601/925-7143

Banking andFinancial ServicesAnne E. DeweyWashington, DC202/414-3803

David W. RodererWashington, DC202/974-1012

BenefitsJodi B. LevineOklahoma City, OK405/231-4451

Rudolph N. Patterson Macon, GA 912/745-1651

Beverage Alcohol PracticeStephen DiamondCoral Gables, FL 305/284-2259

James L. WebsterChicago, IL312/587-8800

CommunicationsHelgi C. WalkerWashington, DC202/418-2000

Consumer ProductsRegulationDavid H. BakerWashington, DC202/973-2709

Peter L. WinikWashington, DC202/637-2224

Criminal ProcessDavid L. DouglassWashington, DC202/778-3026

Stephen M. RyanWashington, DC202/463-4349

Defense andNational SecurityThomas E. Crocker, Jr.Washington, DC202/756-3318

EducationMartin MichaelsonWashington, DC 202/637-5745

ElectionsTrevor PotterWashington, DC 202/719-4273

Jamin B. RaskinWashington, DC202/274-4011

Joseph E. SandlerWashington, DC202/543-7680

EnergyKenneth G. HurwitzWashington, DC202/962-4850

Environmental andNatural ResourcesJames O. Neet, Jr.Kansas City, MO 816/474-6550

Wendy WagnerCleveland, OH216/368-3303

Food and DrugScott BassWashington, DC 202/736-8684

Nick LittlefieldBoston, MA617/832-1105

Government Operations& PersonnelJoel P. BennettWashington, DC202/625-1970

Lynne K. ZusmanWashington, DC 202/659-1971

Health andHuman ServiceH. Stephen BrownMemphis, TN 901/767-1234

Michael MalinowskiWilmington, DE 302/477-2120

Housing andUrban DevelopmentOtto J. HetzelBethesda, MD202/321-1500

Immigration and NaturalizationHiroshi MotomuraBoulder, CO 303/492-7008

Anna W. ShaversLincoln, NE402/472-2194

InsuranceJanet E. BelkinNew York, NY212/815-9267

Intellectual PropertyKenneth CorselloWashington, DC202/220-4310

International LawCharles H. Koch, Jr.Williamsburg, VA757/221-3835

Kathleen E. KunzerArlington, VA703/741-5177

International Trade & CustomsLindsay MeyerWashington, DC 202/962-4800

Labor & Employment LawNancy E. ShallowDetroit, MI313/877-7337

OmbudsmanSharan Lee LevineKalamazoo, MI616/382-0444

Postal MattersWilliam B. BakerWashington, DC 202/719-7255

Public Contracts and ProcurementCharles D. AblardWashington, DC202/789-8787

John W. ChierichellaWashington, DC202/639-7140

Securities, Commodities and ExchangesTimothy R. DonovanChicago, IL 312/923-2871

Alan L. DyeWashington, DC202/637-5737

TransportationWilliam S. Morrow, Jr.Washington, DC202/331-1671

Treasury, Revenue and TaxJames R. HagertyWashington, DC202/778-3037

Veterans AffairsMichael P. HoranWashington, DC 202/416-7792

James W. StewartWashington, DC 202/554-3501

Barton F. StichmanWsahington, DC202/265-8305

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ADMINISTRATIVE & REGULATORY LAW NEWS

action against the foreign product imported into theUnited States. Often this equivalency determination ismanifested in a mutual recognition agreement wherebyanother nation accords our products a like equivalencydetermination. Because this method does not requireany change to our regulations, there is no APA processinvolved. Moreover, judicial review of these determina-tions may be avoided because they may be characterizedas the exercise of prosecutorial discretion rather than anychange to the regulations. Thus, this method also raisesproblems for administrative lawyers.

Whatever the method involved, Professor Shapirosuggested that there was a bias to reduce the stringencyof domestic health, safety, and environmental standards,because most nations do not protect their citizens andenvironment to the degree the United States does. As aresult, developing international norms, while they raisethe standards in most countries, may tend to lower thestandards in the United States.

Professor Charles Koch of William and Mary LawSchool was the final panelist. He asked the audience toconsider three visions of the future. One vision involvesthe emigration of international dispute resolution bodiesfrom strictly trade disputes to disputes involving otherissues, including human rights. Professor Koch notedthat the European Community, which began as simply a

free trade organization – the Common Market, has nowextended to an international government. One couldeven look to the history of the United States, in whichthe desire for free trade among the states led to theConstitutional Convention of 1787 and the creation of anational government. A second vision is one of globalfederalism, in which the national sovereignty of nationstates will diminish in favor of international bodies, suchas the WTO. Obviously, such a vision is not one manyof us would embrace, but Professor Koch’s suggestionwas that this may be an inevitable development as aresult of world trade, communications, and increasinglyshared values. Such a vision suggests that Americanlawyers should be very concerned about the administra-tive procedures used by the developing internationalbodies. Professor Koch’s third vision was that growinginternationalism requires us to understand and appreciateother nations’ domestic laws and culture. He gave anexample of how the European Court of Justice hasdecided cases on the basis of “general principles of law,”but those principles are derived from the domestic lawsof several nations. Some of these general principles, heexplained, may be familiar to American lawyers, but notin the terms used by the court. For instance, review of aregulation for “proportionality,” familiar to Europeanlawyers, probably would be recognizable to Americanlawyers as included in the concept of “arbitrary andcapricious” review.

International continued from page 26

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